Dear all, Considering that many of our members are very activily participating or watching the drafting of the new law, I am forwarding two documents for your consideration so that you get both sides of the argument.
Below you wil find opinion of Justice A.P. Shah on the question of One law vs Code for persons with disabilities which advocates in favour of a Code. At the end is a note written by Mr. Prasanna Kumar Pincha expressing his views after reviewing opinion of Justice Shah. Mr. Pincha who is not a member of the list feels that all sides and shades of opinions should be posted and looks forward to comments on the substative content of his comments/observations. One law vs Code - Opinion by Justice A.P. Shah Opinion on the Pending Question posed in the Explanatory Note to the Working Draft of the Rights of Persons with Disabilities Act and the Memorandum on the Disability Code Background Facts 1. The question posed to the Committee in the Explanatory Note to the Working Draft of the Rights of Persons with Disabilities Act dated 20.11.2010 (the "Pending Question") was as follows - "The issue of the induction of the National Trust and the Rehabilitation Council as separate chapters could not be attempted primarily because there was no time left to undertake a coherent and systematic exercise. It may also be noted that as the length of the statute expanded we felt a constraint of space in even incorporating all the provisions of power and accountability in the chapter on the Disability Rights Authority. It may also be noted that all significant authorities in the country have dedicated legislations around them. In this view of the matter the Committee would need to consider whether it would wish to suggest the creation of One Disability Law Code and within which have legislations on: Disability Rights; the Disability Authority; the National Trust; and the Rehabilitation Council. Or whether it would also wish to induct the National Trust and the Rehabilitation Council into this legislation?" 2. Subsequently the Memorandum on Disability Code (the "Memorandum") reiterated that the DRA, National Trust and RCI should have their own separate legislations. The reasons given were as follows - (a) Lack of "Time" and "Space" (Para 1, Memorandum) (b) "Coherent Operation" and "Efficient Implementation" of the transitory measures in relation to the Mental Health Act (Para 3, Memorandum) (c) "Efficient implementation" and "protection of interests of most marginalised" (Paras 4, 6 Memorandum) 3. The Memorandum also explained the idea of a "Disability Law Code" in the following terms (Paras 5 and 6, Memorandum) - "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." Issue 4. The central issue which has arisen is thus whether the gamut of disabilities laws in the country should be embodied as - (a) one comprehensive statute incorporating the rights of disabled persons, the provisions for enforcement of such rights, and, the powers and responsibilities of the proposed implementing authorities, i.e. the DRA, the RCI, the National Trust (or their equivalent) under separate chapters/sections in the same legislation; or (b) a "code" of multiple legislations, each dealing with - the rights of disabled persons, the powers and duties of each relevant implementation authority including the DRA, RCI, the National Trust (or their equivalent), each under a separate legislation. Opinion 5. The Constitution of India evisages a legislative instrument only by way of a "Bill" which becomes an "Act" of Parliament. Although some legislations have been titled as Codes (for instance the Indian Penal Code, 1860; the Civil Procedure Code, 1908; the Criminal Procedure Code, 1973; and the proposed Direct Taxes Code), in legal terms each statute is an "Act". It appears that the phrase "Disabilities Code" as used in the Pending Question and the Memorandum is a colloquial expression to refer to the set of legislations (as outlined in Para 5(b) above) having "a common philosophy and grammar", in contrast to having a comprehensive statute covering the gamut of disabilities law. 6. The Pending Question and the Memorandum suggests that a "Code" with multiple legislations (at Para 5(b) above) is preferable to a comprehensive legislation. Here, it is important to understand that theoretically it makes no difference whether there is, for instance, 1 Act with 100 Sections, or 100 Acts with 1 Section each. Each word present in an Act is law made by Parliament and is equally binding. There are however certain practical benefits of consolidation which have been discussed later (at Para 9 below). 7. Given the above, let us look to the reasons cited (at Paras 2 and 3 above) for a preference of multiple legislations over one comprehensive legislation - (a) Inadequate time - this is an issue of a practical constraint and is something that has to be worked out within the Committee. I would just state that even if the proposal for a "Code" with multiple legislations is taken up by the Committee, the rights of disabled persons will not be fully realised till each relevant legislation comprising the "Code" is enacted and/or amended. Timing wise, therefore, it would seem to make no difference which of the two proposals (a comprehensive statute or a code) is adopted by the Committee. (b) Inadequate space - length of the law is not a legal constraint to enactment of a law by Parliament. An Act may contain only 1 section or may contain 1,000 sections - the latter will be as much the law of the land as the former. There are several enactments which are voluminous such as the Indian Penal Code, 1860 (511 Sections), the Criminal Procedure Code, 1973 (484 Sections) etc. and these have stood the test of time without any serious concerns about their length. (c) All significant authorities have dedicated legislations - it is true that most authorities are created by way of dedicated legislations. Usually, however, these legislations spell out not just the rules regarding the constitution and working of the authority, but also the rules that they are supposed to enforce. Thus, for instance, the Competition Commission established under the Competition Act, 2002 contains not just the rules governing the constitution and working of the Commission, but also the rules that it is supposed to enforce. Examples may also be given of the SEBI Act, 1992 (constituting the SEBI); the Companies Act, 1956 (constituting the CLB and NCLT); the Income Tax Act, 1961 (constituting the Income Tax Tribunals) each of which contains both the substantive rules for enforcement and the rules governing constitution of the authorities. Given this, having a separate statute containing the rights of disabled persons, and different statutes creating the relevant authorities, would be uncommon. (d) "Coherent Operation" and "Efficient Implementation" of the transitory measures - transitory measures are usually required to ensure a smooth transition from the old law to the new. Examples may be given of the "repeal and savings provision" that exists in statutes which repeal an earlier law. Even the Mental Health Act, 1987 contains a "repeal and savings clause" in S. 98, as it repeals the earlier Indian Lunacy Act, 1912 and Luncacy Act, 1977. Even if the present law which seeks a complete reversal of the philosophy of "mental capacity" poses a more delicate situation than the Mental Health Act, 1987, the transitory measures can be accomodated within a separate chapter as part of the comprehensive legislation, rather than having it as a separate Act. (e) "Efficient implementation" and "protection of interests of most marginalised" - this concern is definitely important and must be kept in mind when drafting the law. It however goes to the substance of the proposed legislation, and not to its arrangement. One can have inelegantly drafted separate legislations which do not adequately protect the interests of the most marginalised, while one can have a neatly drafted consolidated legislation which has the opposite effect. The size of the legislation cannot be equated with efficiency in its operation. For instance, the Equality Act, 2010 in the UK has 218 Sections, is over 250 pages long and covers the entire spectrum of anti-discrimination law including disabilities discrimination. It is elegantly drafted, with related provisions bunched together in neatly organised chapters and is widely seen as a step up from the earlier set of different legislations that existed in this field. 8. There appears to be merit in favouring a comprehensive statute, over a "code" of multiple legislations. The existence of multiple legislations is more likely to create a scattered web of enactments making the law inaccessible and confusing. In a field as critical as disabilities law, such a situation must be avoided at all costs. Creating inter-linkages between multiple legislations and dealing with the hierarchy of authorities are also likely to become increasingly difficult if there exist unconsolidated multiple legislations. Issues of conflicts between different authorities are best resolved under a single comprehensive statute rather than having multiple legislations. In this context, I would agree with the words of the Scottish Law Commission[1] which has aptly summed up the purpose of a consolidating enactment - "Consolidation involves the bringing together of several statutes in an area of law into one Act. Consolidation does not change the law. It is a way of tidying up the statute book and making it easier for people to access legislation. Instead of having to look up several Acts covering a number of years on a particular matter, the user has to look up only one Act. The result is to make it much easier and less time consuming for the user." Justice Ajit Prakash Shah 23.12.2010 [1] http://www.scotlawcom.gov.uk/law-reform-projects/joint-projects/consolidation-of-statutes/ A brief note by Prasanna Kumar Pincha on the opinion given by Justice AP Shah This brief note contains my reflections against the backdrop of an ongoing debate on whether there should be only one comprehensive legislation or one common/comprehensive legislations and other specific legislations on disability rights. The signed opinion of Justice A P Shah retired Chief Justice of the Delhi High Court is the recent contribution on the issue. I make the following submission with utmost humility drawing upon my experiential expertise of disability as well as my professional legal knowledge especially in disability related laws. I firstly wish to point out that the proposed new law is still on the anvil; it is work in progress, and it will be quite a while before the Govt. zeros in on a draft. At this moment, we have before us only a working draft which needs to be improved, modified, fine-tuned and finalized before it is submitted to the Government for consideration and necessary action. The Government, as we all know has its own processes and procedures for going ahead with the matter. Thus, while there is absolutely no reason for panic, animosity or agitation, there is ample scope, space and time for constructive feedback and interactive dialogue to get the law we all desire. Secondly, a conjunctive reading of the consensus paper, the explanatory note, and the working draft put together by the legal consultant to the new law committee should leave one thoroughly convinced that the said legal consultant has, inter alia, put forth a set of suggestions in respect of certain seemingly contentious and sensitive matters following meticulous and in-depth examination of the Committee's deliberations and also of some voices from the civil society. For example, I view the suggestion to consider accepting the principle of one code with multiple laws as a well intentioned brilliant attempt to forge a meeting ground between those who favour the idea of a comprehensive mother legislation with additional need-based specific laws and those who desire one law. Thirdly on the matter of the signed opinion of Justice Shah, I wish to inform that diversity and difference of opinions amongst judges and lawyers is quite the rule. Consequently whilst Justice Shah's opinion has provided another angle to the issue, it is in no way the final word on the matter. There would be other judges, lawyers who would adopt a different view of the matter. Besides, it is necessary to understand that when, for example, someone approaches an expert for an opinion on a given matter, the expert would be guided in formulating the opinion depending upon the manner in which the problem is presented to him or her by the person seeking the opinion of the expert. Consequently, it would not be surprising if the same person who has purportedly expressed an opinion comes out with a different and modified version of his opinion after listening to a different point of view. There is nothing in the opinion of Justice Shah which shows that he had heard the views of both sides that is those who favour one common law along with additional and specific laws, and those who desire only one law under all circumstances. Fifthly, the mandate of the new law Committee is to put together a draft of a new law to replace the existing Persons with Disabilities Act. Although, the term "comprehensive" does not figure in the relevant notification which contains the terms of reference of the committee, the members of the committee interpreted the terms of reference to mean that they were to develop a comprehensive legislation; and yet came up with various and variant interpretations of the term "comprehensive". While a number of committee members saw comprehensive to mean that they need to come up with an elaborate piece of legislation covering all rights of all persons with disabilities, a few of them felt that they need to develop a draft merging all the existing four disability specific legislations. It is for this reason that a working draft covering all rights of all persons with disabilities has been put together without either seeking to merge the existing legislations into one or suggesting repeal of any existing legislation. In the light of the aforesaid context, I wish to respond as follows to the signed opinion of Justice A.P. Shah: Firstly, I fully agree that legally, it matters little whether there is one Act with 100 Sections; or 100 Acts with one Section each as long as it is enacted in accordance with the provisions of our Constitution. I also agree that there is no difference between a "Code" and an "Act" in terms of their legal impact. However, It seems that the legal consultant to the new law Committee introduced this idea to forge a meeting ground between two competing/conflicting demands, and to hammer home the inescapable need for complete coherence. This suggestion by the legal consultant needs to be understood and interpreted keeping in view the aforestated perspective and context. It therefore follows from the above that the proposed new law or laws as the case may be, will need to be developed keeping in mind the following: A. need to address commonalities such as those relating to impairment-based discrimination; B. the need for focused protection and support for the more marginalized groups amongst persons with disabilities; C . The need for introduction and addressal of the diversity angle within and among persons with disabilities. D. User-friendliness of a statute. E. clarity of the statute which serves to avoid chaos and confusion and promotes expeditious and effective implementation. Judged from the above parameters, I am personally convinced that we need to continue with arrangement of a common law and additional and specific laws to additionally address the issues/concerns of more marginalized groups amongst persons with disabilities. Of course, all these laws have to be made UNCRPD consonant. The principle is simple: common law to address commonalities; specific laws to address specificities. On the question of volume it has been stated that since we have some voluminous statutes, or for that matter, some other countries also have voluminous statutes, the Disability Act can also be voluminous. Voluminous statutes are okay if and when they are inevitable. The existence of some voluminous Acts or Codes is not a reasoned justification for having some more. If prior existence is the only reason then it can well be argued that since there are a mber of smaller statutes, so we should have smaller statutes. This does not lead us anywhere. Our effort should be aimed at doing that which best serves the interests of all persons with disabilities. The signed opinion of Justice Shah explicitly refers to the Indian Penal Code as one example of a voluminous statute. The Indian Penal Code is a substantive common law on crimes; but even the presence of this statute has not prevented the enactment of legislations of a specific nature apart from the Indian Penal Code. One such example is the Prevention of Food Adulteration Act. These general and special legislations continue because each kind fulfils a particular role whereby one cannot replace the other. It cannot for example be claimed that all the laws on crime, or on women's rights, or on labour should be clubbed into one huge statute respectively. It may be pertinent to point out that an effort do so for labour laws failed miserably even though the task was led by one of the leading specialist on labour law in the country. As regards the Equality and Non Discrimination Act in UK it needs to be remembered that the particular Act covers all excluded groups and does not confine itself to persons with disabilities. Is India ready for such a comprehensive legislation? The point is that each country has to make laws in relation to its needs and requirements. Now some thought on dedicated statutes for authorities. There is no denying the fact that we have some authorities created under a dedicated statute while others form part of a larger statute. Since the Disability Rights Authority as per the working draft of the new law has been conceived as one with elaborate mandate and a comprehensive structure, it may be appropriate that it is set up under a separate statute. It goes without saying that the said Authority is to have rules for enforcement as well as rules for its own governance. Consequently the said authority meets the criteria mentioned in Justice Shah signed opinion to deserve a dedicated statute. If the proposed Disability Rights Authority is established as a part of the larger statute, then a number of its rules of governance may need to be formulated by the executive. If created through a dedicated legislation these norms of governance could be enacted in the legislation itself. The extent to which we wish to protect this statutory authority from executive interference could signally influence the answer to this question. Moreover, giving the said authority statutory status under a dedicated statute will factually accords it higher visibility and stature. The idea should not be to encourage the creation of a scattered web of legislations as indicated in Justice Shah signed opinion but to facilitate creation of a chain of harmonious legislations coherent with the UNCRPD. I see the current working draft as a draft of a common/comprehensive law. This common law provides the unifying policy and principles which provide guidance when other laws or specific measures were adopted. In view of the above, I humbly urge upon all concerned to do the following: 1. Please keep the best interests of all persons with disabilities in mind. 2. Evolve a consensus on the substance first. The structure can perhaps be taken care of a little later by a panel of experts which the Govt. may be pleased to set up following receipt by it of the Committee's report together with the finalized draft. The said proposed panel of experts may include, among others, legal experts and also persons with disabilities having at least some basic understanding of the related laws, ETC. 3. Respect the Committee's mandate and the time-frame. Prasanna Kumar Pincha. --------------------------------------------------------------------------------
