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The Working Draft of the Rights of Persons with Disabilities Act, 2010: Does it exceed its Mandate in Including Provisions Relating to Other Disability Legislations?

Posted by Prasad Krishna at Feb 24, 2011 05:35 AM |
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The Centre for Internet and Society, Inclusive Planet and the Centre for Law and Policy Research in this legal note analyse how far the January draft of the Rights of Persons with Disabilities Act touches upon the provisions of the other disability legislations, namely the Mental Health Act and The National Trusts Act and thereby exceeds the mandate given by the Ministry of Social Justice and Empowerment to amend only the Persons with Disabilities Act.

Introduction

This is a brief Note on the Working Draft of the Persons with Disabilities Act dated 1.12.2010 (“Working Draft”) on the specific issue of how it relates to the three other disability legislations being the National Trusts Act 1999, the Mental Health Act 1987 and the Rehabilitation Council of India Act, 1992.

From the Working Draft it is seen that there are several provisions which are contradictory to some of the provisions in these three legislations in significant ways. This Note also raises concerns as to whether the Working Draft has exceeded its mandate given by the Committee to only amend the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PWD Act”) by attempting to draft a comprehensive disability law which includes even the other disability legislations .

The Committee and its Mandate

The Ministry of Social Justice and Empowerment, through an Office Memorandum1,  constituted a Committee to “draft a new legislation to replace the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” (“Committee”). 2 The main aim of setting up the Committee was to ensure that the PWD Act was in consonance with the United Nations Convention on the Rights of Persons with Disabilities and not to amend any of the other disability legislations. 3

After the Committee was set up, the minutes of the meeting of the Committee dated 22-07-2010 4 show that the Chairperson reminded the Committee members of the specific purpose for which it was set up and was therefore “not going to debate on formulating one comprehensive law that would repeal all other current disability legislations such as The National Trust Act, Mental Health Act and Rehabilitation Council of India Act, etc.”5

Subsequently, the Consultant appointed by the Committee released several drafts and the latest Working Draft of the Rights of Persons with Disabilities Act, 2010 is dated 01.12.2010(“Working Draft”). 6 The Working Draft surprisingly states that “the mandate of the Committee to the Consultant was to put together a comprehensive legislation which covers all rights of all persons with disabilities.” 7

Further, the Statement of Objects and Reasons of the Working Draft proposes to “replace the current disability legislations with a comprehensive law which recognizes all rights of all persons with disabilities.” 8

These statements in the Working Draft raise some confusion as to whether the mandate given by the Committee has been clearly understood before the drafting process commenced. If the mandate was indeed to only amend the PWD Act and not to amend any of the other legislations such as the National Trusts Act, the Mental Health Act and the Rehabilitation Council of India Act, then the drafting should have been restricted to amending the PWD Act to the extent possible, and not to affect the provisions of the other legislations.

The Working Draft on Other Disability Legislations

The Working Draft does not suggest any amendments to the other disability legislations such as the National Trust Act, 1999, Mental Health Act, 1987 and Rehabilitation Council of India Act, 1992. However, as to the effect that the Working Draft should have on these other legislations, it leaves a “Pending Question” which states9:

“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?”

Added to this, the Memorandum on Disability Code (“Memorandum”) prepared along with the Working Draft explains that the reasons mentioned in the Pending Question along with the lack of time prevented the working out of the linkages between the DRA, the National Trust and the Rehabilitation Council of India.10

About the other dedicated legislations, the Memorandum states as follows11:

“Since we reached the opinion that the newly established DRA should have its own legislation we also concluded that the National Trust and the RCI should have their own legislations which should spell out the specific tasks each of those authorities should carry out to implement the rights recognized in the New Rights for Persons with Disabilities Act. The National Trust should be the authority which addresses the issue of multiple discrimination and be mandated to proactively formulate policies and programs by which to ensure the equality and non discrimination of persons with disabilities who are so disadvantaged and the RCI could work on HRD. The composition and powers and functions of the three bodies should be so created that it ensures convergence of operation.”

With regard to the Mental Health Act, the Memorandum makes the following recommendation12

“The proposed new law recognizes the paradigm of legal capacity with support. It also recognizes the right to life, liberty and integrity of all persons with disabilities. The recognition of these rights requires a re-examination of the Mental Health Act. Even if it is accepted that community living and no force are what is required for all; it is necessary to ask what should be done with the existing institutions and the inmates housed in them. The process of dismantling cannot be done without creating alternative services and there is a need to make a transit legislation which addresses this interim situation. The reason for making the transit legislation comes from the main law but to allow coherent operation and efficient implementation of these transitory measures it is better that they are contained in a separate legislation.”

These statements in the Explanatory Notes to the Working Draft shows that it not restricted itself to only amending the PWD Act as envisaged by the Mandate given by the Committee. An examination of the Working Draft shows that it has neither completely substituted the provisions of the three other disability legislations into the Working Draft, nor has it restricted itself to amending only the PWD Act - it is somewhere in the middle, where some many provisions which are covered by the three other disability legislations are significantly altered and at the same time these legislations are not sought to be amended simultaneously.

If the intention of the Working Draft is to replace all the other disability legislations, then it clearly exceeds the mandate of the Committee.

Section 7A(2) of the Working Draft

Section 7A (2) and 7B (2) in the Working Draft are included only within the chapter relating to Legal Capacity. They are phrased unusually to render any legislation, rule, notification, order, bye-law, regulation, custom and practice that deprive a person with disability from exercising his legal capacity as void.

Such a provision in one statute which declares a provision in another statute as void may not even be constitutionally permissible. The function of the legislature is to enact, re-enact, amend and repeal laws. The judiciary under Article 13 of the Constitution can exercise its powers of judicial review to render a provision which infringes on the fundamental rights as void. The legislature however, has no such power.

The Hon’ble High Court of Delhi in P.L. Mehra and Ors v. D.R. Khanna and Ors (AIR 1971 Delhi 1) held as follows:
“…the decision in Mahendra Lal Jaini's case, as to the nature of a statute becoming void under Article 13 confirms the view that the statute itself continues to exist on the statute book but has become "ineffectual, nugatory and devoid of any legal force or binding effect". The thrust of these words is that such a law cannot be given effect to by the Courts in deciding upon the rights of the parties. These words are significant only for the purposes of the Courts vis-a-vis the rights of the parties. They would be meaningless if applied to the power of the Legislature to re-enact, repeal or amend a statute. For, one can hardly say that these powers of the Legislature cannot be exercised in respect of a statute which is ineffectual, nugatory and devoid of any legal force or binding effect. Indeed, it would be all the more necessary for the Legislature to amend or cure statutes which are suffering from such defects. The nature of the defects is such that only a judicial decision can point them out. It is not by an act of Legislature but only by a judicial decision that one would know whether a statute is ineffectual, nugatory and devoid of any legal force or binding effect.”

Therefore, the declaration of a statutory provision as ‘void’ can only be done by the judiciary as  “voiding” of the law only comes into question at the time of the enforcement or implementation of the law. The legislature’s function is to repair the defect in legislation by amending it or repealing the whole legislation.

The Working Draft, in declaring other legislative provisions as void is being vague as to the specific provisions of specific legislations which are to fall under the Section. The Working Draft cannot make a blanket declaration of all laws inconsistent with legal capacity as void without taking steps to identify the provisions and make amendments or deletions.

Effect of the Working Draft without amendment of other disability legislations

The provisions of the Working Draft are introduced in such a way as to affect the provisions of the other disability legislations. In light of this, the need for amending the provisions of these disability legislations is a pressing one. The inconsistencies between the Working Draft and the other disability legislations range from the definition of ‘persons with disability’ to the recognition of the basic principle of legal capacity. As detailed in the table, the National Trust Act follows a completely different basis for determining who a ‘person with disability’ is. If the definition is not amended under the National Trust Act, it results in an inconsistency in the language under the various disability legislations.

Further, the Working Draft is not correct in declaring that other legislative provisions which deprive a person of legal capacity as void. Declaration that a provision of law is void is not the function of the legislature. Its function is to adequately amend it so as to be consistent with the principles it intends to introduce and enforce. This applies to the principle of legal capacity which the Working Draft aims to bring into all the disability legislations. In order to do so, it has to amend the Mental Health Act and the National Trust Act accordingly.

The authorities under the various disability legislations have their set functions. However, the Working Draft is uncertain as to how to divide the responsibilities of the various authorities. It does not incorporate the various authorities under the Working Draft provisions itself. However, it encroaches on the powers and functions of those authorities by making the Disability Rights Authority or some other ‘delegated authority’ in charge of them. While doing so, it does not even amend the provisions  of the other legislations. This is a serious discrepancy as the enforcement of rights and performance of duties under the legislations. If there is a confusion as to which authority is responsible to perform a specific function, then a person might be deprived of the very rights that the Draft seeks to enforce.

Leaving the other disability provisions unamended leads to an especially difficult situation when the courts have to determine the intention of the legislature while drafting and have to apply that intention while interpreting it. Further, it is not clear as to what rights should be enforced against which authority in court. Therefore, the merging of the areas of function between the various authorities makes the enforcement of rights itself difficult and therefore uncertain.

Conclusion

Thus, as seen from the Working Draft, it is clear that it seeks to be one comprehensive law on disability, which would encompass issues addressed by several other disability laws. The explanatory notes state that it leaves the issue of the DRA and the authorities such as the Rehabilitation Council and the National Trust as a Pending Question.

It also refers to a Disability Code, which would encompass all disability legislation within its framework and raise this as an issue for the Committee to decide, when that has never been the mandate of the Committee. The explanatory notes state that it would bring within its fold all authorities such as the Rehabilitation Council and the National Trust and that the linkages between these authorities and the new Disability Rights Authority set up under the Working Draft would have to be worked out through transit legislation. The Working Draft leaves the discretion to the Committee to come to a conclusion as to whether all the authorities have to be incorporated under the same legislations or a separate Code with all the legislations has to be prepared. Thus, the roles which the authorities have to perform are left uncertain. The Mandate of the Committee was to replace the PWD Act, 1995. Therefore, the powers and functions of authorities which are established under the other disability legislations ought to have been left untouched. Instead, the Working Draft seeks to make a comprehensive legislation covering all the disabilities while it leaves the implementation aspect uncertain and undecided.

These statements along with some of the specific provisions mentioned in the table above show clearly that the Working Draft aims to be some kind of a comprehensive code to bring in all disability legislations within its fold and not only to amend the PWD Act, which was its specific mandate. For these reasons, the Working Draft has exceeded the mandate given to it. This has been suggested even by some members of the Committee. 13

Further, the Working Draft by only including Section 7A(2) in its chapter relating to Legal Capacity, which would render all other legislation in contravention to it as void, is not suitable and adequate. There would be adverse consequences if the other legislations are not suitably amended. For example, the entire Mental Health Act would need an overhaul if the right to legal capacity is introduced in the Working Draft. The local committees set up under the National Trusts Act would have to be completely abolished as their only role is to appoint guardians, which is completely done away with in the Working Draft. Thus, the mere inclusion of Section 7A (2) is not sufficient and workable, nor is it within the powers of the legislature to include.

The Working Draft has listed in Schedule 1 the amendments suggested to other legislations. This Schedule is incomplete and the specific provisions relating to the National Trusts Act 1999, the Rehabilitation Council of India Act 1992 and the Mental Health Act 1987 are also legislations which need amendment and should be included in this Schedule.

It is crucial that there is clarity on these important issues as to what exactly is being proposed to be amended. Whether it is only the PWD that is sought to be replaced or all other disability legislations are to be replaced by a Disability Code need to be understood by the drafters. If the mandate is only to amend the PWD Act, then it is important that we restrict ourselves to this mandate so as to ensure that other disability legislations are not affected. The other legislations can be amended at their own time, after the present PWD Act has been revised as per the mandate of the Committee.

Download the working draft in the format you may prefer:

Notes

1GOVERNMENT OF INDIA. DEP’T OF SOCIAL JUSTICE AND EMPOWERMENT, OFFICE MEMORANDUM FOR THE CONSTITUTION OF A COMMITTEE TO DRAFT A NEW LEGISLATION TO REPLACE THE PWD ACT, 1995., F.No. 16-38/2006-DD.III, (30th April 2010).

2 id

3See id

4See MINUTES OF MEETING, 2ND MEETING OF THE COMMITTEE TO DRAFT NEW LEGISLATION FOR PERSONS WITH DISABILITIES., ( 22nd July 2010).

5See id at Page 1.

6See Working Draft of the Rights of Persons with Disabilities Act, 2010, available at http://www.disabilitystudiesnalsar.org/newlaw.php. (Last visited on 24-01-2011).

7See id at Explanatory Note.

8See id at Statement of Objects and Reasons.

9Explanatory Notes: Rights of Persons with Disabilities Act Working Draft, Part IV, available at http://www.disabilitystudiesnalsar.org/explanatory-notes.php. (Last visited on 24-01-2011)

10See Memorandum on Disability Code, Background, available at http://www.disabilitystudiesnalsar.org/bcp-disability-code.php. (Last visited on 24-01-2011)

11See id at Dedicated Legislations.

12See id at Transitory Measures

13“Crisis hits panel on new Disability law” Available at http://www.tribuneindia.com/2010/20101224/main5.htm

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