Memorandum on Disability Code

Dr. Amita Dhanda

The Background

In the explanatory note to the Working Draft we had communicated to the Committee that in our opinion in order to do full justice to the Disability Rights Authority in terms of putting down its power and responsibilities in full detail it would be appropriate if the Authority was established under a dedicated statute of its own, instead of being made to tag along with the Rights statute. We had pointed out that we felt cramped for space in working out the norms by which representation to the Authority should be worked out and accountability of members obtained. It was due to this substantive constraint along with the lack of time that prevented us from working out the linkages between the DRA and other Authorities in the disability field such as the National Trust and the Rehabilitation Council of India.

Dedicated Legislations

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.

Transitory Measures

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.

Demands for Comprehensive Legislation and Protection of Interests of Most Marginalized

The Committee and consequently the legal consultant has been faced with two demands: one, seeking a comprehensive all inclusive legislation; and the other asking that the interests of the most marginalized persons with disabilities should not be compromised and side-lined. The reason for seeking a comprehensive legislation as we understand is to ensure convergence in the operation of various authorities in the field and to make for more effective implementation. Whilst the group asserting the interest of the marginalized accepts the need for convergence, it fears that if such convergence is obtained in one comprehensive legislation, which absorbs all authorities then the voices of the more organized groups could drown their concerns.

Convergence in Disability Code

It is in the wake of these equally valid concerns that it was suggested that a Disability Code may be formulated which could be a legally accepted and efficient way of bringing convergence along with accommodating difference. The difference between a Code and multiple legislations in a field is that the Code has a common philosophy; common grammar and a concerted effort to ensure that each part fits into a cohesive whole. Thus for example there are number of legislations on children which occupy the field today but they do not make a Children Code because the cohesiveness of philosophy, grammar and the convergence between authorities is absent.

The difference between a Code with multiple legislations and a single comprehensive legislation is that a Code with multiple legislations allows each area to obtain the detailed and dedicated attention it requires. The Companies Act; the Income Tax Act are examples of legislations which are comprehensive but whose very comprehensiveness becomes a barrier to their efficient implementation. A Code with multiple legislations makes it easier to undertake capacity building and awareness raising of the law and it ensures that the interests of the marginalized groups are not submerged in the bulk of a large legislation.

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