WORKING PAPER: CONSTITUTION OF THE COUNCIL IN THE NEW DISABILITY LAW

WORKING PAPER: CONSTITUTION OF THE COUNCIL IN THE NEW DISABILITY LAW

by Shreya Parikh

ABSTRACT

The central argument of this paper is the establishment of a Council of persons with disability within the proposed Disability Rights Authority of the New Law on Disability. The paper is divided in four parts. The first part of the paper deals with the justification and mandate of the Council. The justification is based on obligations of India under the UNCRPD and the jurisprudential concept of deliberative democracy. The mandate of the Council is substantially drawn from deliberative democracy, accordingly, it is proposed that the Council shall be constituted of persons with disability as they are most affected by the law and policy on disability and the Council shall have discussions with the state machinery to inform the state of the rights of persons with disability, when the State seeks to make a new law or issue a legal instrument.

The second part of the paper deals with the composition of the Council. It is envisaged that majority of the Council shall include persons with disability. After visiting the theory of impartial spectator by Amartya Sen and the need for dissent by Cass Sunstein, it is proposed that the Council shall also include duty bearers who represent the State and private sector to ‘balance’ the discussion in the Council. The third part of the paper deals with the procedure for appointment of persons with disability to the Council. Adopting the theory of deliberative democracy in its entirety, it is contemplated that persons with disability shall have the right to decide their representation in the Council. One of the major areas of concern in this part is whether reservations are required for ensuring that all interests within the disability sector are included within the Council. The author has presented a set of suggestions and alternatives for the electoral college for the Council and for the reservation, the ultimate decision has been left open for the Committee. The fourth part of the paper draws a link between the National Trust Act and the Council, and seeks to address concerns of parallels between their election procedure, and of reservations from the National Trust Board to the Council. Being, in the nature of a Working Draft, the paper does not have a conclusion, the last leg of the paper is an Annexure of the proposed Chapter on Council.

India enacted the Persons with Disabilities Act (“PWD Act”) in 1995  and ratified the United Nations Convention on Rights of Persons with Disabilities (“UNCRPD”) in 2007.  The PWD Act did not conform in entirety to the mandate of the UNCRPD. The Government proposed amendments to the PWD Act which would bring it in consonance with the UNCRPD. However this suggestion was not accepted by the proponents in the disability sector and they pressed for a new legislation on rights and entitlements of persons with disability. Eventually, the State conceded to this demand.  This paper proposes the authorities which are to be constituted under the “New Law”.

Article 33 of the UNCRPD provides that State parties shall maintain, strengthen, designate or establish a framework to promote, protect and monitor implementation of the present Convention.  In a series of meetings which were held by the Committee which was entrusted with the responsibility of drafting the New Law, it was agreed upon that the authority would raise awareness and undertake sensitization; evolve policy, assist co-ordination and monitor implementation; and undertake regulatory responsibilities. Accordingly, it is proposed that a Disability Rights Authority be constituted which includes three wings, a Commission; a Council and a Regulatory body.   

The Council is the law and policy making wing of the DRA which would work on the concept of deliberative democracy. The Commission shall exercise a wide range of powers extending from undertaking sensitization, raising awareness, inspection powers, to deal with structural grievances of persons with disability, etc. The Regulatory Authority on the other hand would formulate guidelines and regulations for the implementation of the rights and entitlements under the New Law and enforce the same. 

PART I

JUSTIFICATION AND MANDATE FOR A COUNCIL

The UNCRPD casts an obligation on the State parties to account for the protection and promotion of human rights of disabled persons in all policies and programmes.  In order to ensure effective enjoyment of all rights by persons with disability, it not sufficient to enact a law on rights of persons with disability, it is essential that future laws, policies and programmes in different areas like employment, education, privacy, etc. also recognize and enforce the rights of persons with disability. 

In the context of the above mandate, a Council is proposed to be created which will on a continuous basis evaluate laws, policies and other legal instruments for their conformity to rights of persons with disability and make necessary and appropriate recommendations to the state for better recognition and enforcement of rights of individuals with disability. Comparative examples for the same can be found in other countries. For instance, in the United States of America, the disability legislation is supplemented with the mandate of the National Council on Disability which has as a part of its mandate,

“…review and evaluate on a continuing basis new and emerging disability policy issues affecting individuals with disabilities at the Federal, State, and local levels, and in the private sector, including the need for and coordination of adult services, access to personal assistance services, school reform efforts and the impact of such efforts on individuals with disabilities, access to health care, and policies that operate as disincentives for the individuals to seek and retain employment.”

Similarly, the United Kingdom Equality and Human Rights Commission makes an attempt to influence the development and amendment of all government policy, plans and departmental strategies to guarantee that the policy accounts for the importance of equality, diversity and human rights,  including non-discrimination towards persons with disability.  Similar provisions of examining laws and policies on a constant basis for their responsiveness to the concerns of persons with disability are found in the Canadian Human Rights Commission and the Australian Human Rights and Equal Opportunity Commission. 

Article 4(3) of the UNCRPD provides that,

“In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

Therefore, the UNCRPD mandates that a body as the Council shall actively involve persons with disabilities. The justification for the mandate of the UNCRPD can be found in the jurisprudential concept of ‘deliberative democracy.’ Deliberative democracy recognizes and underscores the importance and the necessity of citizen participation in decision making. It basically emphasizes that balloting democracy or representative (numerical) democracy is not sufficient to address public issues.  There is a need to involve citizens and affected parties in a deliberation over what the law should contain.  According to eminent jurist Jürgen Habermas, the legislative authority can be attributed only to the united will of the people. If someone prescribes a decision for another, then there is a possibility of injustice, but this is not true if one makes a decision for herself.

Such deliberation must be characterized by proposing, listening, concerting and changing one’s opinion to form in common a common will.  It is often understood as the process of transformation of preferences through rational deliberation than of aggregation of preferences.  Further more, while deciding on issues which are of immediate concern to a minority group (a group which is a minority due to the shares interests and experiences of the persons constituting it), decisions should be taken on the basis of an inclusive model which accommodates reasons than on a model of simple counting of votes. 

Accordingly, the Council must be constituted of persons with disability, or members of family of persons with disability  as law and policy making over disability issues concerns and substantially affects them. The Council would thereafter engage in a deliberation with the relevant state machinery on the issues of disability rights. Through the institution of the Council, there is an endeavour to institutionalize a compulsory deliberative process between the Council constituted of persons with disability and the state machinery so that the Council can inform the state representative’s opinion of the rights of persons with disability and thus influence the outcome of the legal instrument. The process of deliberation and debate over the content of a legal instrument makes for responsible and responsive law making, and also fosters a culture of reason and debate within the disability sector.

The following provision is proposed:

Council:

A Council shall be constituted under the Disability Rights Authority.

The Council shall on a continuous basis review and evaluate legislations, policies, rules, bye-laws, programmes, and notifications  at the Union, State and local level and other legal instruments for their conformity with rights of persons with disability. 

If the Council is of the opinion that the legal instrument has inadequately recognized or inadequately substantiated on the rights of persons with disability then it shall issue a set of guidelines/ guiding principles to the relevant state machinery on the need or obligation to bring the legal instrument in conformity with the rights of persons with disability, and thereafter, the legal instrument shall be subject to a compulsory consultative process between the Council and the state machinery.

If a Ministry or any other State instrumentality requests the Council to review, evaluate and make suggestions on any legal instrument for its conformity with rights of persons with disability, then the Council shall do the same in accordance with the procedure laid down in this law. 

The guidelines or guiding principles issued by the Council in pursuance of this provision shall be open to public and widely disseminated.

The Council shall develop a comprehensive national policy to address issues faced by persons with disabilities.

Explanation:

Legal instrument:

Legal instrument includes but is not restricted to legal instruments related to health, education, accessibility, transportation, work and employment, political participation, privacy, risks and humanitarian emergencies, freedom from exploitation, violence and abuse, independent living and inclusion in community and community life, habilitation and rehabilitation, social protection, and participation in cultural life, recreation, leisure and sport. 

Rights of persons with disability:

Rights of persons with disability includes every right recognized in the United Nations Convention on the Rights of Persons with Disability, the New Law, and other rights so recognized under the law of India and internationally.

Relevant state machinery:

It refers to the Executive, Union or the State, as the case may be, in case of a policy or a programme or a notification or rules; a Parliament or State Legislature, as the case may be, in case of a law and, a local government in the case of a bye-law, and the relevant authority in the case of programmes.

In case of the Executive, the Minister heading the Ministry which issued the concerned legal instrument shall appoint a three member Committee of senior bureaucrats, which includes the Chief Secretary of the Ministry. 

In case of the Parliament or Legislature, the Ministry with which the bill or the law is concerned, shall appoint a three member Committee of senior bureaucrats, which includes the Chief Secretary of the Ministry.

In case of a local body or authority, the head of such local body or authority shall appoint a three member Committee of senior bureaucrats.  

Any reference to the relevant state machinery in the context of deliberations with Council shall mean a reference to any of the above Committees, depending on the nature of the legal instrument.

Compulsory Consultative Process:

The relevant state machinery shall file a written reply to the guidelines or guiding principles by the Council within thirty days of its receipt.

If the relevant state machinery disagrees with the guidelines or guiding principles, such that it does not intend to incorporate them into the legal instrument or implement them, then it shall substantiate its opinion in the reply with objective research and reasons on the points of disagreement. Thereafter, the relevant state machinery shall convene a meeting between itself and the Council within thirty days of filing the written reply with the Council. In this meeting, the relevant state machinery and Council shall discuss and debate, and seek to reach a consensus.

The proceedings of this meeting shall be recorded and be open to public. 

PART II

COMPOSITION OF THE COUNCIL

The Council is proposed to have a substantial majority of persons with disability as they are most affected by the law and policy in this sector. At this juncture it would be crucial to attend to the theory of ‘impartial spectator’ which is forwarded by Amartya Sen in his recent book, the Idea of Justice. Sen draws most of his argument from Adam Smith’s argument of the impartial spectator which was given in his book, Theory of Moral Sentiments. While Sen and Smith are in agreement with the theory that the stakeholders must be involved in decision making on the law so as to reach a fair decision,  they reason that it is also necessary and just to engage with a person who is not a part of the focal group which is going to be directly affected by the decision, and who can view the situation and decision from a distance.  Sen gives three reasons for this theory of which two are of relevance, one that viewing the problem and the decision from the eyes of the impartial spectator would broaden the vision and perspective of the focal group. Thus if certain local  biases or prejudices are influencing the decision, then the impartial spectator would be able to identify them and explain them to the focal group.  This exercise would enable the focal group to overcome their parochialism and widen the reach of their ethical inquiry.  Second, that there is a possibility that though the impartial spectator is out of the focal group, she is affected by the decision of the focal group in some way. In such situation, it would be wise and just to take account of the opinion of the impartial spectator. 

Applying this theory, the Council should have impartial spectators who are not a part of the focal group of persons with disability. The New Law conceptualises duty bearers (state and private sector) who would be under an obligation to respect and enforce the rights of disabled persons and provide entitlements. The duty bearers would constitute apt impartial spectators.  There would be discussions, deliberations and debates within the Council between persons with disability and the duty bearers. Further, the duty bearers would also be affected by the law and hence would be able to explain the contrary and competing perspective to the disability segment of the Council. Accordingly, there would be an objective informing of each other’s perspectives and the Council would be empowered to take a more informed and just decision towards the formulation of the recommendations. Even the National Trusts Act, 1999  incorporates this model of having disabled persons, representatives of state and of trade, industry and commerce on the Board.

There is another very compelling argument for having duty bearers within the Council. This is based on Cass Sunstein’s theory of the necessity of dissent in decision making. While explaining how decisions are taken in the Federal Court of the United States, he explains that in the constitution of a bench, there could be two phenomena which take place – ideological amplification and ideological dampening.

Ideological amplification – where a group is so composed to make a decision that the members have common or similar ideological reasoning or beliefs. This could result in the situation of group polarization  where members of a common group may collectively take extreme decisions which they may not otherwise take in their individual capacity.

Ideological dampening – where a group is so constituted that the members are from different ideological leanings and beliefs and hence the decision taken is informed by different viewpoints.  Thus, the decision is moderate in character and keeps majoritarian excesses in check. Dissent and heterogeneity of opinion is a creative force, which ensures that maximum information reaches the public officials or persons seeking to make a decision.

The Council is an important decision making body, and there is a need to ensure that there is no ideological amplification in the manner in which it is constituted. The mandate of the Council is to give appropriate recommendations to the state machinery on the recognition and operationalising of rights of persons with disability in the proposed law or policy as the case may be. Therefore, it would be apt if the Council is substantially constituted of persons with disability. However, in the context of what Sunstein proposes, if dissent from duty bearers is discouraged then the Council would be deprived of relevant information of the implementation of the recommendations, the working and operationalizing of the state machinery, etc. This would deprive the Council from reaching a correct decision as it may arrive at a decision which is removed from reality or unimplementable. To avoid such a situation, it is crucial that there is a representation of duty bearers in the Council which allows for challenging and refining the majoritarian view or opinion (of persons with disability within the Council).

Accordingly it is proposed that the Council should be constituted of persons with disability and duty bearers such that two-thirds of the Council is constituted of persons with disability and one-third of the duty bearers. Underscoring the point that the persons affected by the law should be engaged in the law making process, persons with disability should enjoy substantial majority in the Council. The duty bearers play the role of an impartial spectator and of ensuring dissent within the Council; hence it would not be appropriate to give them equal representation as that of persons with disability. Further, though representation of the duty bearers is important for the reasons mentioned before, it should not effectively compromise on the mandate of the Council of holding deliberations on behalf of the disability sector with the state machinery.

The following provision is proposed:

Composition of the Council:

The Council shall have 21 members of which two-third members shall be persons with disability, or family members of persons with disability; the remaining one-third members shall be duty bearers.

The members of the Council shall have tenure of three years and shall be eligible for re-election thrice.

PART III

APPOINTMENT OF PERSONS WITH DISABILITY TO THE COUNCIL

The core of the mandate of the Council is that it will be the law and policy making body on behalf of persons with disability. Adopting the aforementioned concept of deliberative democracy, that persons affected by the law shall be involved in decision making of the law, in its entirety, persons with disability have a right to decide who will represent them on the Council. This procedure shall accord the Council additional legitimacy for exercising its mandate.

Contrast this with the situation in United States of America, where members of the National Council on Disability are appointed by the President upon recommendations of the organizations of persons with disability or organizations interested in individuals with disability. Though the American law mandates that the National Council of Disability so constituted should be representative of individuals with disability, it does not entitle the individuals to decide on who would be on the Council. India has made a progressive departure from this in the National Trusts Act, 1999 itself, where elections are held for constituting the members representing individuals with disability on the Board of the National Trust. 

The right of persons with disability to decide their representatives to the Council could be concretized in two ways, first, every person with disability would exercise a vote for individuals whom they opine should be a part of the Council. Therefore, the electoral college would be constituted of persons with disability and persons with disability would see direct representation in the Council. This model is a very good adoption of ‘persons affected by the law should make the law’. This could be worked in two ways, the Certificate of Disability which would be issued by the Certifying Authority could be utilized to confirm that a person is disabled and hence entitled to vote. Also, identity procedures in the proposed Unique Identification (“UID”) can be used for confirming that a person is disabled. 

The foremost weakness of this model is that it may marginalize the persons with certain disabilities who do not enjoy numerical strength. It must be noted that there are diverse groups within the disability sector. This diversity could be in the nature of disability,  the nature of entitlements and benefits received in response to the disability,  the extent of organization of persons with certain disabilities, etc. Thus, persons with disability, who have certain special or unique needs and concerns but are not large in numbers, may not be adequately represented. There is a need to constitute the Council in such a manner that the interests of the entire population of individuals with disability are taken into account.

Another method of ensuring representation to persons with disability could be that the electoral college could be constituted of the organizations of persons with disabilities,  and the organisations of families of persons with disability and organisations interested in and working for the interests of persons with disability, which would be registered under the New Law. This model has the shortcoming that groups within persons with disability who are better organised shall enjoy more representation in the Council. Therefore this method risks marginalising of less organised and probably, more vulnerable groups. Also, the numerically weaker groups may not see adequate representation in the Council.

As the two options of constituting the electoral college of persons with disability or of organizations, has similar pros and cons, a decision on the same is not being taken and the decision shall be open to the Committee engaged with drafting the New Law.

The following provisions are suggested:

Appointment of persons with disability to the Council:

All persons with disability shall be entitled to exercise one vote each to individually elect the fourteen members to the Council who shall represent the rights, interests and concerns of persons with disability. OR

All organizations of persons with disabilities, the organisations of families of persons with disability and organisations interested in and working for the interests of persons with disability which are registered under the New Law shall be entitled to one vote each to individually elect the fourteen members to the Council who shall represent the rights, interests and concerns of persons with disability. 

Reservations in the Council:

Accordingly, immaterial of whether the electoral college is constituted of persons with disability or of organizations, it is crucial to ensure that interests within the disability sector are not unrepresented or unaccounted due to inadequate numerical strength or organisational success of the interests. So, certain seats on the Council must be reserved for representation of interests which are unlikely to be represented by direct election. This reservation could precede the elections or succeed the elections. In the former case, there would be a need to undertake an exercise to determine the groups within the disability segment which are most likely to not be represented at the Council and seats may be reserved for these groups. This reservation would be in the nature of being permanent but amendable.

Alternatively, the elections for the Council could be held and subsequently an assessment can be made on whether all interests from the disability sector are represented in the Council. Logically, the latter method is preferred as the assessment of unrepresentation would be customized to the outcome of the elections. Further, the latter model also harbours the hope that all interests would be represented by election, and in the least it could be aspired that all interests would be represented in the future (as the New Law would empower and enable all persons with disability to have commensurate political participation capabilities and success) if not with immediate effect. The former method entails its set of difficulties as it would require an enumeration of the sub-groups and distinct interests within the sector and a prospective assessment of the success of the sub-groups in the elections. This would be a subjective and complicated exercise.

Alternatively, a more coherent procedure could be evolved for ascertaining whether any interests within the disability sector are unrepresented, post the outcome of the elections. The procedure proposed has its conceptual basis in deliberative democracy and Cass Sunstein’s theory of the need of dissent in decision making.

Post the completion of the elections, the persons or organizations who believe that their interests or concerns are not adequately represented will have the opportunity to make a representation that they are not adequately represented. Subsequently, a meeting shall be convened between:

The persons or organizations who are of the opinion that their or certain interests are not represented in the outcome of the elections of the succeeding Council,

The members of the existing Council who are representative of persons with disability and,

The elected members of the succeeding Council who are representative of persons with disability. 

In this meeting, the three different groups shall discuss their opinions with each other and it is by way of discussion and deliberation that they will reach a common consensus. Though it is not conceptualized or hoped that groups (1) and (3) would have contrasting view points, they would serve to provide relevant information from different sectors and discussion between them will assist in reaching a fair and moderate  decision. 

The concern is who would take the final decision on whether certain interests have been unrepresented in the Council. There are two options, one that the members of the existing Council should take a final decision after being adequately informed by the discussions and deliberations. There is at least one compelling reason for giving this power and responsibility to the members of the existing Council, and for this it is necessary to revisit the core of deliberative democracy. Deliberative democracy recognizes and underscores the importance and the necessity of citizen participation in decision making. However, the concept of deliberative democracy is seen as complementing the existing institutions of state and of representative democracy. It basically emphasizes that balloting democracy is not sufficient and the discussion that goes behind a choice of ballots is crucial. Therefore, it does not take away the responsibility and authority of State mechanisms to be constituted and to take decisions.  The existing Council is an institutional and state mechanism under the Disability Rights Authority and hence it can rightfully be given the mandate of taking a decision on whether reservations are required in the succeeding Council.

The aforementioned corollary to the concept of deliberative democracy can be crystallized in another manner, in giving the entire consortium a qualified entitlement to vote. In this case every member of the existing Council and of the succeeding Council shall have the entitlement to exercise one vote. So, each of the Councils shall have 14 votes. Accordingly, to ensure that persons advocating representation are not unsuccessful due to their sheer numerical weakness, even they must be given fourteen votes as a group. Each of the representation shall be given a right to vote. In case there is an equal division in votes on an issue or resolution, the matter shall be decided by the Chairperson by a casting vote.

The latter method is a more inclusive method of decision making, however it is more complicated and also assigns more power to the Chairperson than the rest of the Council. The former method on the other hand, is relatively straightforward and less complicated. Further both the methods fulfil the requirement of fairness to the extent that discussions are held in both the methods. Therefore, tentatively, none of the options emerges as the fairer or the better option and which option to take would be left open to the Committee.

Four seats of the fourteen seats for persons with disability in the Council shall be earmarked for reservation. In the event that the meeting decides that certain interests or concerns are not adequately represented, then the number of elected members shall be proportionately reduced, and the reservations shall take effect.

Minutes of aforesaid meeting shall be taken and published. This is crucial as we are trying to evolve a procedure of reasoned decision making and transparency which also furthers accountability to public of the authorities concerned.

The following provision is contemplated:

Reservations:

After the elections of the Council for the succeeding term have been completed, results of the elections shall be widely disseminated, including putting it up on the website of the concerned Ministry.

After the announcement of the results, any person or organization of persons with disability, or family of person with disability, or organization of family of persons with disability or any person or organization interested in rights of persons with disability can make a representation to the Council that her interest or certain interests of persons with disability have not been adequately represented within the Council. Such representation can be made within a period of thirty days from the date of the announcement of the result.

These representations can be made by post or online and shall be made public on the website of the concerned Ministry.

After the period of thirty days, a meeting shall be convened by the Chairperson of the existing Council for the fourteen members of the existing Council who represent persons with disability, all the persons or organizations who have made representations under the aforesaid section and the elected members of the succeeding Council.

After the completion of the deliberations, the members of the existing Council shall decide by vote whether reservations are required to the succeeding Council, and if they are required then who shall be so nominated to represent the interests and concerns of persons with disability which have not been represented in the outcome of the elections of the succeeding Council and, such reservation cannot exceed more than four persons. OR

After the completion of the deliberations, every member of the fourteen members of the existing Council who represent persons with disability and every elected member of the succeeding Council shall have the entitlement to exercise one vote, and the persons or organizations who have made representations shall have fourteen votes as a group, on whether reservations are required to the succeeding Council, and if they are required then who shall be so nominated to represent the interests and concerns of persons with disability which have not been represented in the outcome of the elections of the succeeding Council and, such reservation cannot exceed more than four persons.

Each of the representations shall be given one right to vote in the aforementioned meeting.

If the number of representations is less than 14 then the number of votes for every representation shall be proportionately increased. If the number of representations is more than fourteen, then each representation shall have the entitlement to exercise one vote and the number of votes of the two Councils shall be proportionately increased.

In case there is an equal division in votes on an issue or resolution, the matter shall be decided by the Chairperson by a casting vote.

The elected member of the succeeding Council who have received the least number of votes from within the fourteen members shall be replaced by the person nominated in accordance with this provision. This procedure can continue to the extent of four members.

Minutes of aforesaid meeting shall be taken and published.

At the time of constitution of the first Council, the aforesaid representations shall be received by the Union Minister of Social Justice or Empowerment or its delegate, and a decision on the need for reservations and consequent nomination shall be taken by the Minister or the delegate.


PART IV

LINKAGE BETWEEN COUNCIL AND NTA

The National Trust Act was enacted in 1999, it has a corpus fund to be utilized for persons with autism, cerebral palsy, mental retardation and multiple disabilities, in assistance to live independently, to provide care, put up residential set ups etc.  A majority of the chunk of its work has been the appointment of legal guardians for persons with the aforesaid disabilities.  There are two important amendments which are proposed to the Act, one, that adopting the universal legal capacity paradigm, the Act must provide for supported decision making and not for legal guardianship, and that the scope of the Act should be extended to all persons with disabilities.

Under the Act, a Board is constituted for the utilization of the corpus. Nine members on the Board representing persons with disability are nominated by the organisations related to disability and in case the number of suggestions for nominations, exceeds the number to be nominated then such persons are appointed after holding an election.  Some parallels may be drawn between the election procedure of the NTA and the Council. For instance, for the purpose of administrative convenience, the elections for the Board members and the Council could be held simultaneously. As much as the elections can be held simultaneously, one election cannot be held for both bodies. There are two reasons for this, one, the electoral college under the two laws will be different, the NTA in its present form or proposed amendment, only considers an electoral college of voluntary organisations, association of parents or families of persons and association of persons with disability related to autism, cerebral palsy, mental retardation and multiple disability,  while the Council proposes to have an electoral college of all persons with disability or of organisations related to any disability. Secondly, the mandate of the two bodies is distinct, NTA undertakes programmatic interventions for assisting and enabling the exercise of legal capacity, while, the Council makes suggestions on emerging issues of law and policy related to disability. So, the elections of the NTA and Council can be held simultaneously but, two distinct elections are required.

The second concern which may be attended to is whether there could be any reservation for the persons with disabilities covered under the NTA in the Council or whether there could be any reservation for the Board members on the Council? In response to the first question, any concern of providing reservation in the Council for the four disabilities or any other disability has been addressed by the aforesaid provision of reservations and the elaborate proposed procedure for the same. Therefore, if any person is of the opinion that any person with disability covered under the NTA is not adequately represented in the Council then the person can initiate the aforementioned procedure for reservation. The response would be similar even if the NTA is amended to include persons with all disabilities, immaterial of whether it is retained in the NTA or incorporated as a Chapter in the New Law. In response to the second question, the Board should see some representation in the New Law so as to enable better co-ordination and functioning between the Board of the NTA and the DRA. However, this representation is more suited in the Executive Committee of the DRA than the Council. The Executive Committee would be the co-ordination arm for the three wings of the DRA and representation from NTA would be required at that level as the NTA may need to collaborate with the Regulatory Authority or Commission on enforcement of guidelines or implementation of certain programs respectively. As mentioned above, the mandates of the Board and Council are distinct and there does not seem any need or purpose for reserving seats in the Council for the NTA (unless through the contemplated reservation procedure).


ANNEXURE I

DRAFT OF THE CHAPTER ON COUNCIL

Section 1

Council:

A Council shall be constituted under the Disability Rights Authority.

The Council shall on a continuous basis review and evaluate legislations, policies, rules, bye-laws, programmes, and notifications  at the Union, State and local level and other legal instruments for their conformity with rights of persons with disability. 

If the Council is of the opinion that the legal instrument has inadequately recognized or inadequately substantiated on the rights of persons with disability then it shall issue a set of guidelines/ guiding principles to the relevant state machinery on the need or obligation to bring the legal instrument in conformity with the rights of persons with disability, and thereafter, the legal instrument shall be subject to a compulsory consultative process between the Council and the state machinery.

If a Ministry or any other State instrumentality requests the Council to review, evaluate and make suggestions on any legal instrument for its conformity with rights of persons with disability, then the Council shall do the same in accordance with the procedure laid down in this law. 

The guidelines or guiding principles issued by the Council in pursuance of this provision shall be open to public and widely disseminated.

The Council shall develop a comprehensive national policy to address issues faced by persons with disabilities.

Explanation:

Legal instrument:

Legal instrument includes but is not restricted to legal instruments related to health, education, accessibility, transportation, work and employment, political participation, privacy, risks and humanitarian emergencies, freedom from exploitation, violence and abuse, independent living and inclusion in community and community life, habilitation and rehabilitation, social protection, and participation in cultural life, recreation, leisure and sport. 

Rights of persons with disability:

Rights of persons with disability includes every right recognized in the United Nations Convention on the Rights of Persons with Disability, the New Law, and other rights so recognized under the law of India and internationally.

Relevant state machinery:

It refers to the Executive, Union or the State, as the case may be, in case of a policy or a programme or a notification or rules; a Parliament or State Legislature, as the case may be, in case of a law and, a local government in the case of a bye-law, and the relevant authority in the case of programmes.

In case of the Executive, the Minister heading the Ministry which issued the concerned legal instrument shall appoint a three member Committee of senior bureaucrats, which includes the Chief Secretary of the Ministry. 

In case of the Parliament or Legislature, the Ministry with which the bill or the law is concerned, shall appoint a three member Committee of senior bureaucrats, which includes the Chief Secretary of the Ministry.

In case of a local body or authority, the head of such local body or authority shall appoint a three member Committee of senior bureaucrats.  

Any reference to the relevant state machinery in the context of deliberations with Council shall mean a reference to any of the above Committees, depending on the nature of the legal instrument.

Section 2

Compulsory Consultative Process:

The relevant state machinery shall file a written reply to the guidelines or guiding principles by the Council within thirty days of its receipt.

If the relevant state machinery disagrees with the guidelines or guiding principles, such that it does not intend to incorporate them into the legal instrument or implement them, then it shall substantiate its opinion in the reply with objective research and reasons on the points of disagreement. Thereafter, the relevant state machinery shall convene a meeting between itself and the Council within thirty days of filing the written reply with the Council. In this meeting, the relevant state machinery and Council shall discuss and debate, and seek to reach a consensus.

The proceedings of this meeting shall be recorded and be open to public. 

Section 3    Composition of the Council:

The Council shall have 21 members of which two-third members shall be persons with disability, or family members of persons with disability; the remaining one-third members shall be duty bearers.

The members of the Council shall have tenure of three years and no person shall be appointed a member of the Authority for more than two consecutive terms  and shall be eligible for re-election thrice.

Section 4

Appointment of persons with disability to the Council:

All persons with disability shall be entitled to exercise one vote each to individually elect the fourteen members to the Council who shall represent the rights, interests and concerns of persons with disability. OR

All organizations of persons with disabilities, the organisations of families of persons with disability and organisations interested in and working for the interests of persons with disability which are registered under the New Law shall be entitled to one vote each to individually elect the fourteen members to the Council who shall represent the rights, interests and concerns of persons with disability. 

Section 5

Appointment of duty bearers within the Council:

There shall be appointed seven duty bearers within the Council out of which two members shall represent the duty bearers in the private sector.

Four persons not below the rank of Joint Secretary to the Government of India and nominated by the Government representing the Ministries or Departments of Social Justice and Empowerment, Health and Family Welfare, Labor and Education shall be appointed. 

If the Minister of Social Justice and Empowerment is of the opinion that a Ministry or Department which is not mentioned in this provision has direct concern with or responsibility for a legal instrument which is under consideration by the Council then a representative of the Ministry or Department not below the rank of the Joint Secretary to the Government of India and nominated by the Government representing the concerned Ministry  shall be accorded observer status for the duration of the deliberation of the aforesaid legal instrument such that, she shall be obliged to attend all meetings of the Council related to the concerned legal instrument and to comment on the proceedings, however, such representative shall not have the entitlement to vote. 

If the legal instrument under consideration is not at the Union instrument, and is a State instrument or a local level instrument, then a person not below the rank of Joint Secretary to the State Government and nominated by the State Government representing the concerned State Ministry or, representative of the local body, as the case may be, shall be accorded observer status for the duration of the deliberation of the aforesaid legal instrument such that, she shall be obliged to attend all meetings of the Council related to the concerned legal instrument and to comment on the proceedings, however, such representative shall not have the entitlement to vote. 

The representatives from the private sector shall be nominated by the Minister of Social Justice and Empowerment after due consideration to the mandate of the Council. They may be from the fields of trade, industry, education and health.

Section 6

Reservations:

After the elections of the Council for the succeeding term have been completed, results of the elections shall be widely disseminated, including putting it up on the website of the concerned Ministry.

After the announcement of the results, any person or organization of persons with disability, or family of person with disability, or organization of family of persons with disability or any person or organization interested in rights of persons with disability can make a representation to the Council that her interest or certain interests of persons with disability have not been adequately represented within the Council. Such representation can be made within a period of thirty days from the date of the announcement of the result.

These representations can be made by post or online and shall be made public on the website of the concerned Ministry.

After the period of thirty days, a meeting shall be convened by the Chairperson of the existing Council for the fourteen members of the existing Council who represent persons with disability, all the persons or organizations who have made representations under the aforesaid section and the elected members of the succeeding Council.

After the completion of the deliberations, the members of the existing Council shall decide by vote whether reservations are required to the succeeding Council, and if they are required then who shall be so nominated to represent the interests and concerns of persons with disability which have not been represented in the outcome of the elections of the succeeding Council and, such reservation cannot exceed more than four persons. OR

After the completion of the deliberations, every member of the fourteen members of the existing Council who represent persons with disability and every elected member of the succeeding Council shall have the entitlement to exercise one vote, and the persons or organizations who have made representations shall have fourteen votes as a group, on whether reservations are required to the succeeding Council, and if they are required then who shall be so nominated to represent the interests and concerns of persons with disability which have not been represented in the outcome of the elections of the succeeding Council and, such reservation cannot exceed more than four persons.

Each of the representations shall be given one right to vote in the aforementioned meeting.

If the number of representations is less than 14 then the number of votes for every representation shall be proportionately increased. If the number of representations is more than fourteen, then each representation shall have the entitlement to exercise one vote and the number of votes of the two Councils shall be proportionately increased.

In case there is an equal division in votes on an issue or resolution, the matter shall be decided by the Chairperson by a casting vote.

Minutes of aforesaid meeting shall be taken and published.

At the time of constitution of the first Council, the aforesaid representations shall be received by the Union Minister of Social Justice or Empowerment or its delegate, and a decision on the need for reservations and consequent nomination shall be taken by the Minister or the delegate.

Section 7

Tenure:

The members of the Council shall have tenure of three years and no person shall be appointed a member of the Authority for more than 2 consecutive terms  and shall be eligible for re-election thrice.

Section 8

Resignation:

A member of the Council may resign from the Council by letter addressed to the Minister of Social Justice and Empowerment and the resignation shall take effect as and from the date on which the Minister receives the letter.

Section 9

Removal:

A member of the Council may be disqualified on the following grounds by the Minister of Social Justice and Empowerment :

is, or at any time has been, adjudged insolvent or has suspended payment of his debts or has compounded with his creditors, or

is or has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude, or

is or at any time has been convicted of an offence under the New Law, or

has so abused in the opinion of the Central Government his position as a Member as to render his continuance in the Central Coordination Committee detrimental to the interests of the general public.

However, no order of removal shall be made by the Central Government under this section unless the Member concerned has been given a reasonable opportunity of showing cause against the same. 

Section 10

Remuneration:

Each member of the Authority shall be paid such allowances for expenses and remuneration as prescribed by the Rules under the New Law.

Each member of the Council is entitled to be paid such travel and living expenses incurred by the member in the performance of duties and functions under this Act as are prescribed by Rules under the New Law. 

Section 11

Chairperson:

The members of the Council on the date of their first meeting shall elect, by simple majority a Chairperson from among themselves.

The Chairperson will convene and chair the subsequent meetings of the Council, except in the case that the chairperson is not present or such office is vacant in which case the members who are present shall choose one of their members to chair the meeting.

The chairperson of the Council shall cease to hold such office if he or she ceases to be a member of the Council.

Section 12

Meetings:

The Council shall hold such and so many meetings as the Council may deem necessary for the performance of its functions but the Council shall have a meeting at least once in every two months.

The mandate of the Council shall be operationalized during these meetings.

Issues and questions within the Council shall be determined by a vote of simple majority, and every member of the Council shall have one ordinary vote and the Chairperson or the member chairing the meeting, as the case may be, shall have a casting vote in the case of an equal division of votes in the Council.

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