Dear Accessindians,
I am forwarding a very well written note by Mr. Prasanna Kumar Pincha on the
one law vs multiple laws for the disabled debate which is raging at present.
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Dear friends
I am enclosing herewith a concise note put together by me based on my personal
understanding of the issue. The enclosed concise note is self-explanatory. If
you so desire, please feel free to share this note with other friends of the
sector as well.
Best regards,
Prasanna Kumar Pincha,
One law Vs. Multiple laws
This concise note contains some arguments and counter-arguments in respect of
a raging debate on only-one-law theory versus another theory favouring one
common law together with other need-based specific laws on disability. These
arguments and counter-arguments which are based on my personal understanding of
the issue are stated below:
1. Argument:
There should be only one common law for all persons with disabilities; and,
there should not be any specific law for persons belonging to any specific
category of disabilities. Having more laws than one will adversely impact the
unity of the movement of persons with disabilities. In fact, more laws than one
for persons with disabilities will divide them and will eventually bring about
fragmentation in their movement.
Counter-argument:
The above argument is utterly ridiculous. Division or split in any movement
can not be attributed to the existence of a given number of laws for a certain
group. Split or division in movements happen due to other reasons, such as,
ideological differences, personality clashes, ETC. Can anybody, for example,
argue with even the least measure of justification that the women's movement
will disintegrate because there exist various legislations to protect and
promote various aspects of their rights? Certainly not. The fact of the matter
however, is that legislations on specific issues are reflective of the state's
resolve to address those issues in a focused manner. This explains why we have
specific legislations on prohibition of dowry, protection of women against
domestic violence, equal pay for equal work for women, ETC. Besides, the
Constitution of India also addresses the commonality around gender/sex-based
discrimination as it includes sex amongst one of the prohibited grounds of
discrimination vide Articles 15 and 16 which applies to all women in equal
measure.
All persons with disabilities across the entire spectrum of categories of
disabilities do share certain commonalities. These commonalities, for example,
are around issues of impairment-based discrimination. While constitutionally,
there exist no explicit safeguards against discrimination for persons with
disabilities, we do have a common law in the form of Persons with Disabilities
Act covering various major categories of persons with disabilities; and, this
law will now be replaced with an altogether new law which will be in consonance
with the Un Convention on the Rights of Persons with Disabilities(UNCRPD), and
which will include and benefit all persons with disabilities. It goes without
saying that we do have some specific and dedicated legislations on disability,
such as, the National Trust Act, the Mental Health Act, and the RCI Act. While
the National Trust Act and the Mental Health Act seek to address some very
specific issues of persons belonging to certain specific categories of
disabilities, The RCI Act imparts a statutory status to the Rehabilitation
Council under a dedicated statute. Understandably, these dedicated legislations
will also be either amended or replaced with new legislations so that they are
in harmony with the UNCRPD. Since persons with some specific categories of
disabilities are more marginalized and vulnerable compared to other persons
with disabilities, existence of additional and specific and dedicated statute
for such persons would rather strengthen the disabilities rights movement
instead of weakening it as erroneously apprehended by some. We must remember
here that such persons with disabilities will always remain covered under the
common legislation. Clearly, therefore, the objection to having specific and
dedicated statute has no merit whatsoever.
Moreover, one must also not lose sight of the fact that there concurrently
exist both common law and specific law in other areas as well. For example,
while the Indian Penal Code is a substantive common law on crimes, nothing has
prevented us from enacting any number of laws on specific crimes under
dedicated statutes, such as, Prevention of Food Adulteration Act, Prevention of
Corruption Act, ETC.
2. Argument:
Only one law will ensure single-window service to all persons with
disabilities and will also cut down costs of implementation and monitoring.
Counter-argument:
This argument is inherently fallacious. Single-window service or
multiple-window service has nothing to do with number of legislations which
exist. First of all, we need to understand that no one can ever get all
services at or from one place. If I want scholarship for my education, for
example, I have to approach the education department. Similarly, if I need
assistance under a social security scheme, I must approach the Department of
Social Justice and Empowerment, so on and so forth. Would it not be so utterly
funny if one looks for medicine in a grocery shop; or for that matter, one
visits a textile show-room to buy oneself a pair of shoes?
In this view of the matter, how weird would it be to suggest that all the
implementation and monitoring mechanisms under the various legislations should
be clubbed into one entity? Likewise, how absurd would it be to propose that
all the mechanisms under the various disability related legislations should be
clubbed into one! This is all the more impractical given the intricate
diversities and diverse intricacies that exist amongst persons with
disabilities as they are not a homogenous group.
3. Argument:
Existence of more laws than one on disability will ghettoise/isolate some
persons with disabilities and will enhance their stigma.
Counter-argument:
Where, in the first place, is the question of ghettoising/isolating some
persons with disabilities when all persons with disabilities will continue to
be part of a common law and will also benefit from it?
Secondly, stigma stems from erroneous and negative attitudes, preconceived
notions, entrenched prejudices, etc. Stigma has nothing to do with the number
of legislations on disability. Therefore, stigma will get reduced and
eliminated through education, orientation, awareness-raising, sensitization,
and capacity building of all concerned.
4. Argument:
It is advisable to have only one law on disability so that the law is
user-friendly.
Counter-argument:
Given the intricate diversities and diverse intricacies amongst persons with
disabilities, clubbing highly specific issues with issues common to all persons
with disabilities will create chaos and confusion, rob the statute of clarity,
and render it utterly unwieldy. Besides, the statute will become
disproportionately voluminous. Of course, voluminousness is okay if it is
inevitable; but here, in the current context, it can both be avoided and should
be avoided on account of aforesaid reasons.
5. Argument:
Why can't we have an omnibus Act similar to the Equality Act, 20010 of UK?
Counter-argument:
Equality Act, 2010 of UK covers many vulnerable groups including, but not
restricting to persons with disabilities. In other words, persons with
disabilities are only one of the various disadvantaged groups covered under the
Act. But this has not prevented UK from continuing with the existing
Disability Discrimination Act (a common law) or with the copyright amendment
Act for the Visually Impaired (a visual-disability specific legislation) which
if I remember correctly, was enacted By UK in 2002 and which came into force in
UK with effect from October 2003.
It would be in the fitness of things for me to state here that some people
invariably insist on finding out whether there are precedents of a common law
and specific law regime on disability existing side by side in other countries.
While the answer is in the affirmative, I would like to express the opinion
that while we must eschew unhealthy precedents and follow the healthy ones
wherever they exist, we must proactively create healthy, imaginative, and
innovative precedents for others to emulate or replicate.
6. Argument:
All the authorities on disability should necessarily form part of that "only
one law".
Counter-arguments:
This is utterly unacceptable. While certain authorities can form part of the
same statute, there are other authorities which are created under dedicated
statutes depending on a number of factors including their wide range of powers,
comprehensive nature of their mandate, and also their elaborate structures.
Creation of an authority under a dedicated statute imparts to it, for all
practical purposes, greater visibility and higher stature. Therefore, the idea
of clubbing The RCI, The National Trust, etc. under one statute does not find
favour with me. I also feel that even the proposed disability rights authority
envisaged in the currently available working draft of the new law should be set
up under a dedicated statute.
Conclusion:
In view of the foregoing, I would like to sum up my opinion in this way:
Common law to address commonalities; specific laws to address specificities.
Prasanna Kumar Pincha
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