A retrograde and incoherent law

The disability sector is torn between rejecting the Bill outright and assemblinga few non-negotiables to have the Bill passed by the Lok Sabha

DISADVANTAGED:Enacting a retrograde and incoherent law now would fly in the face of years of advocacy for change and indicate that nothing has been learnt from experience. —PHOTO: NAGARA GOPAL

After inter-governmental consultation and scrutiny by the Ministry of Law, the Rights of Persons with Disabilities Bill, 2013 stands approved by the Union Cabinet. What has the Cabinet approved? Is it the same legislation formulated by a joint committee of civil society, States and Union Ministries in 2011 and settled upon after a nationwide consultation in every Indian language? Is it the legislation displayed on the website of the Ministry of Social Justice and Empowerment since 2012? Or has the government been able to get away from fulfilling its constitutional and international obligations, while the nation’s media looked the other way?

Dilutes rights

India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007. Since then, the wheels have been in motion, to bring Indian laws in line with our international obligations, which is to recognise autonomy and dignity for all persons with disabilities in the country. The disability sector’s motto has been, most aptly, “nothing about us, without us.” The Bill was originally drafted following a thorough pre-legislative deliberative process with civil society. Yet, the legislation approved by the Cabinet has no relationship at all with the drafts which had been circulated, discussed and published. It denies people with psychosocial disabilities the right to make their own life decisions, by permitting plenary guardianship; allows discrimination on grounds of disability if it is appropriate to achieve a legitimate aim; it runs counter to the Supreme Court’s own decision by returning to the concept of “identified posts” for reservation in employment; it systematically dilutes and undoes all of the rights, entitlements and remedies that the original Bill envisaged. A progressive, rights-based law has been transformed into an anachronistic, welfarist legislation through bureaucratic fiat, and democratic law-making suffers silently, as a consequence.

With the general election just round the corner, the disability sector is now torn between rejecting outright a Bill that does not reflect its aspirations and assembling a few “non-negotiables” to have the Bill passed by the Lok Sabha. It is unlikely that the introduction of a few progressive provisions in a law that is as ill-drafted as this one would serve the ends of the community. In 1995, in a scenario where there was no law, the disability sector had importuned a boycotting Opposition to return to the House to pass the Disability Act without debate, in the hope that inadequacies would be remedied with amendments. But amendments are hard to come by. The government set up a committee to suggest amendments to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 within three years of its enactment. Despite unanimous endorsement by civil society, not a single amendment was made. In 1995, there was a legal vacuum and since half a loaf was better than no bread, such a strategy had to adopted. Since then, even as legislative initiative failed, the courts have poured constitutional steel into the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 as disability rights activists worked at upgrading an inadequate law.

Thus, enacting a retrograde and incoherent law, now, would fly in the face of years of advocacy for change and indicate that we have learnt nothing from experience.

Unresolved questions

What are the likely consequences of passing such a hastily drawn up legislation, within the span of a few days? The most obvious consequence, of course, is that the needs of those persons with disabilities who could not make their voices heard in such a short timespan (inevitably, the most disadvantaged) are unlikely to be addressed. This is evidenced by the fact that, in the list of non-negotiables drawn up, the provision on the right to legal capacity is just the text of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) pasted into the legislation; without stating what happens to existing laws denying legal capacity or how people in guardianship are to enter full personhood. How will the interests of the doubly disadvantaged women with disabilities be taken on board? How does the constitutional mandate of life, liberty, mental and bodily integrity become real for persons with intellectual, psychosocial and developmental disabilities? These, among others, are real questions that are yet to be resolved.

The other necessary ramification of passing a patchwork law is that, for the interpretation of such a legislation, persons with disabilities will have to knock at the doors of the judiciary endlessly — a process that is both expensive and enormously time-consuming, even if one were to presume that everyone has access to the country’s higher judiciary. Of course, one cannot ever be certain that the judiciary would interpret the law in favour of persons with disabilities. Legal interpretation is influenced and circumscribed by the language and the general import of the law in question: even progressive provisions can fail to see adequate implementation when embedded in a regressive law. It would be infinitely preferable to build consensus around a robust legislation instead of spending the next few decades hoping for positive judicial interpretation and clamouring for legislative amendments.

At the most basic level, this cloak and dagger method of passing legislation runs counter to the very conception of participative democracy. If the law is to be enacted in the current session then one can say with complete certainty that there will be no time for a draft to be circulated. Millions of people will be held hostage to a law that they played no part in creating and did not even read in its final formulation; while the law they did come together to draft lies discarded. In passing a Bill as shrouded in secrecy as this, a potentially inclusive, transparent and empowering legislative process would be reduced to a matter of political connections and empty rhetoric.

(Amita Dhanda is professor and head, Centre for Disability Studies, Centre for Legal Philosophy and Justice Education, NALSAR University of Law, Hyderabad.)