CDS Report of the Preamble and Definitions Meeting - 20th September 2010

Agenda for the Meeting

The sub-group was to analyse and see which recommendations to the base document could be adopted in the text of the legislation and record the reasons for the same. The recommendations that required consideration were threefold: one was to distinguish between the preamble and object and reasons and categorize the details mentioned in the base document into the two. The second was to consider the proposition of having a generic as well as an enumerative definition of disability within the Act. The third issue was to look the definitions over all and see whether they are appropriate for the purpose of the legislation.

Distinguishing between the Preamble and Object and Reasons

The base documents enumerated the international obligations, legislative history etc. within the preamble of the legislation. The sub-group recognized that the preamble is specifically important in this scenario because this legislation is the primary assertion and declaration of rights of persons with disability. The sub-group agreed that the Preamble will have to draw from the civil and political rights chapters so as to ensure that it captures the underlying rights based approach of this legislation. Hence, the need was felt to segregate as to what part shall go into the preamble and the object and reasons, as the preamble will set the tone and tenor for the statute.

On the same lines, a majority of the sub-group was in favour of retaining the same title as the old Act so as to enable the new legislation to borrow and advance the jurisprudence developed by the 1995 Act. However no final decision was taken and the matter was deferred for consideration by the full Committee

Double Definition of Disability

The sub-group agreed that the legislation should envisage the definition of 'person with disability' instead of 'disability' so as to borrow from the development around CRPD. The discussion around the nature of the definition culminated with an understanding that the core principles of the statute are based on civil political rights and hence the recognition of these rights have to be done by adopting the model of inclusion. The other part of the statute deals with entitlements in employment, education etc. which would require an enumeration within the definition.

However, the enumerative definition should not govern the whole Act as it would exclude a lot of people who would be denied their rights on the basis of the definition. Certification is only about claiming the entitlement whereas the inclusive definition would be about recognition and progressive development. Hence, it was agreed that there shall be two definitions: one generic definition which shall govern the statute and especially the part concerning equality and non-discrimination. The other definition shall be enumerative which shall be for the purpose of entitlements. This will help in drawing the line for technical and administrative purposes. With respect to the enumerative definition it was the unanimous opinion of the sub-group that it shall be an inclusive definition which would enable accommodating other communities when the need is felt.

To ensure effective and full enjoyment of these entitlements, the need was felt to widen the scope of 'establishment' so as to accommodate the entitlements even within the private sector. It was agreed by the sub-group that the term shall be defined by borrowing from the jurisprudence and precedents developed by the Indian Courts around Article 12. Any effort to pull in the private player through an expanded definition of establishment could be constitutionally questionable and furthermore it may cause hardship to small private establishments.

The Overall Purview of the Definitions

The sub-group felt that various definitions have been included within the base document which would require consultation with the stake holders or the community affected by it. Consequently the community of transsexuals/hijras could not be included by the committee on its own without any claim for inclusion being made by the community. Such a non consultative inclusion would not be in accord with the rights approach adopted by the statute. Further a definition clause was not unlinked from the substantive law and a community from whom no provision was made in the statute could not be included in the definition clause.

Similarly it was agreed that the definitions of specific disabilities like blindness, celebral palsy etc. should be rendered final after having them vetted by the concerned community. On the same line of thought, there were certain suggestions the that terms like 'barriers', 'full and effective participation' and 'awareness raising' should not be defined as they are evolving concepts and not all forms of the term can be anticipated at one point of time. By defining the term, the scope of the term shall be restricted and shall be captured only in the enumerative component. Whilst it was generally accepted that full and effective participation and awareness raising need not be defined the question of whether or not to define barrier was referred to the full committee,

As regards the over view of the definitions, it was seen that most of the definitions like 'Universal Design', 'Communication' etc. in the base document have been adopted from the CRPD and were suitable. However, to effectuate the policies enshrined within the definitions and the preamble, it was suggested that a recommendation be made for a Constitutional Amendment to the effect of shifting disability as a subject from List II to List III of the VII Schedule. This would give competence to the Parliament to enact the law in compliance with the CRPD and also give States the power to customize the law according to the needs of the specific regions in the State.

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