Re: [AI] article on RPD bill by Dr. amita dhanda.
On 2/27/14, Poonam wrote: > pasting below the article written by amita dhanda from indian express. > http://indianexpress.com/article/opinion/columns/a-policy-of-activism-and-restraint/2/ > > Disability Rights on the Ordinance Route > AmitaDhanda > > The last one month has been contentious and controversial in the realm > of disability rights. The government obtained cabinet approval for the > Rights of Persons with Disabilities Bill 2014 which fell way below the > standard of the UN Convention on the Rights of Persons with > Disabilities as it reinforced popular stereotypes instead of > challenging them and permitted discrimination instead of prohibiting > it. It also moved backwards on questions of autonomy, choice and > liberty. Due to these various regressive features large segments of > the disability sector criticized the Bill. The supporters of the Bill > pointed to its having included 13 new impairments and the enhanced > percentage of job reservation. Since the losses were outweighing the > gains and the number of provisions which required fixing innumerable, > the Chairperson of the RajyaSabha referred the Bill for due > consideration by a House Committee. In the circumstances the most > appropriate solution. > The dust had barely settled on this decision, before another > controversy engulfed the disability rights legislation. There are > rumours running rife that the government is planning to enact the Bill > of 2014 as Ordinance in order to meet the long pending concerns of the > disability sector. Two questions are on everyone's lips: can the > government enact the Bill of 2014 through the Ordinance route after it > had been referred to the House Committee; and two, should the > government take this route? > Under Article 123 of the Indian Constitution the President has power > to make law through Ordinance provided: one, both Houses are not in > session; and two, the President is satisfied that circumstances exist > which render it necessary that immediate action should be taken. Once > both these conditions are satisfied then the President may authorize > the promulgation of any Ordinance which the circumstances may require. > Insofar as the two Houses are not in session, the first condition is > satisfied. However the second condition is not met. The Bill was sent > to a House Committee and not passed by Parliament because it was > accepted that it needed more work. The Bill was only introduced in > the House and sent to the Committee. No other urgency to enact the > Bill was either expressed or demonstrated. In such circumstances, it > cannot be contended that there was any circumstance which showed that > urgent enactment of the Bill was required. In fact any effort to enact > the Bill as Ordinance, after it has been referred to the House > Committee would, in the light of the Supreme Court's ruling in DC > Wadhwa,be seen as a colourable exercise of power and a fraud on the > Constitution. Both on a plain reading of the Constitution and by > relying on judicial decisions, it can be stated that the President > cannot enact the Bill of 2014 by promulgating an Ordinance. > Ordinarily, the inquiry on this question should stop with the above > answer. However since many may consider the above response a purely > technical one, it is important to also ask whether the Government > should enact the Bill of 2014 by using the Ordinance route? To answer > this question, it is important to appreciate that disability rights is > not an unoccupied field. The Persons with Disabilities (Equality of > Opportunity, Full Participation and Protection of Rights) Act 1995 > already controls the area. If the Bill of 2014 is promulgated as > Ordinance, it cannot become operable unless the Act of 1995 is > repealed. The Act of 1995 has empowered a series of individual, bodies > and authorities to implement the statute; all these entities would > become dysfunctional if the Act of 1995 is repealed but there would be > no time to establish and render functional the new authorities because > an Ordinance can remain operable for a maximum period of seven and a > half months without obtaining parliamentary approval. The enactment of > the Bill through the Ordinance route will obtain no benefit to the > freshly included impairments but would create an enforcement vacuum > even for the disabilities already included in the 1995 Act. It can > thus be concluded that it is not desirable to enact the Bill of 2014 > through the Ordinance route because this procedure would usher > confusion and chaos and could cause all disabilities to lose > legislative protection. > However, the reference of the Bill of 2014 to the House Committee puts > the freshly included disabilities at a special disadvantage. Since > 1999, when a Committee set up to suggest amendments to the Act of 1995 > highlighted the need for inclusion, the battle has been on, to > recognise excluded impairments. The disabilities which stand included > in the A
[AI] article on RPD bill by Dr. amita dhanda.
pasting below the article written by amita dhanda from indian express. http://indianexpress.com/article/opinion/columns/a-policy-of-activism-and-restraint/2/ Disability Rights on the Ordinance Route AmitaDhanda The last one month has been contentious and controversial in the realm of disability rights. The government obtained cabinet approval for the Rights of Persons with Disabilities Bill 2014 which fell way below the standard of the UN Convention on the Rights of Persons with Disabilities as it reinforced popular stereotypes instead of challenging them and permitted discrimination instead of prohibiting it. It also moved backwards on questions of autonomy, choice and liberty. Due to these various regressive features large segments of the disability sector criticized the Bill. The supporters of the Bill pointed to its having included 13 new impairments and the enhanced percentage of job reservation. Since the losses were outweighing the gains and the number of provisions which required fixing innumerable, the Chairperson of the RajyaSabha referred the Bill for due consideration by a House Committee. In the circumstances the most appropriate solution. The dust had barely settled on this decision, before another controversy engulfed the disability rights legislation. There are rumours running rife that the government is planning to enact the Bill of 2014 as Ordinance in order to meet the long pending concerns of the disability sector. Two questions are on everyone's lips: can the government enact the Bill of 2014 through the Ordinance route after it had been referred to the House Committee; and two, should the government take this route? Under Article 123 of the Indian Constitution the President has power to make law through Ordinance provided: one, both Houses are not in session; and two, the President is satisfied that circumstances exist which render it necessary that immediate action should be taken. Once both these conditions are satisfied then the President may authorize the promulgation of any Ordinance which the circumstances may require. Insofar as the two Houses are not in session, the first condition is satisfied. However the second condition is not met. The Bill was sent to a House Committee and not passed by Parliament because it was accepted that it needed more work. The Bill was only introduced in the House and sent to the Committee. No other urgency to enact the Bill was either expressed or demonstrated. In such circumstances, it cannot be contended that there was any circumstance which showed that urgent enactment of the Bill was required. In fact any effort to enact the Bill as Ordinance, after it has been referred to the House Committee would, in the light of the Supreme Court's ruling in DC Wadhwa,be seen as a colourable exercise of power and a fraud on the Constitution. Both on a plain reading of the Constitution and by relying on judicial decisions, it can be stated that the President cannot enact the Bill of 2014 by promulgating an Ordinance. Ordinarily, the inquiry on this question should stop with the above answer. However since many may consider the above response a purely technical one, it is important to also ask whether the Government should enact the Bill of 2014 by using the Ordinance route? To answer this question, it is important to appreciate that disability rights is not an unoccupied field. The Persons with Disabilities (Equality of Opportunity, Full Participation and Protection of Rights) Act 1995 already controls the area. If the Bill of 2014 is promulgated as Ordinance, it cannot become operable unless the Act of 1995 is repealed. The Act of 1995 has empowered a series of individual, bodies and authorities to implement the statute; all these entities would become dysfunctional if the Act of 1995 is repealed but there would be no time to establish and render functional the new authorities because an Ordinance can remain operable for a maximum period of seven and a half months without obtaining parliamentary approval. The enactment of the Bill through the Ordinance route will obtain no benefit to the freshly included impairments but would create an enforcement vacuum even for the disabilities already included in the 1995 Act. It can thus be concluded that it is not desirable to enact the Bill of 2014 through the Ordinance route because this procedure would usher confusion and chaos and could cause all disabilities to lose legislative protection. However, the reference of the Bill of 2014 to the House Committee puts the freshly included disabilities at a special disadvantage. Since 1999, when a Committee set up to suggest amendments to the Act of 1995 highlighted the need for inclusion, the battle has been on, to recognise excluded impairments. The disabilities which stand included in the Act of 1995 await the passage of the new law, whilst continuing to obtain the benefits and entitlements provided in the Act of 1995; the disabilities, which are not so included get
