"Unlike pestilence, laws are not things that happen suddenly to any nation. But for India it was so. In 1857 there was a Mutiny in India, called by many as the First War of Independence. The British rulers felt uncanny urgency about the situation and thought that exhaustive codification could only regulate the unbridled conduct of the erratic Indians. The effect of Mutiny on the Statute Book was unmistakable. Consequently as an aftermath, several statutes came into existence : Code of Civil Procedure and Limitation Act of 1859, Penal Code of 1860, Criminal Procedure Code, 1861, Succession Act of 1865 and Contract Act of 1872, Guardians and Wards Act (1890),etc." (1)
Every enactment should be studied in the context of the prevailing socio-economic circumstances of the nation.
India today has the proud privilege of being one of the largest producers of statutory enactments. The legislative output is phenomenal, the total number of existing Central Acts would be nearly 1221. The domain to be covered range from birth to death and the dimensions vary from six sections in the Contempt of Courts Act to 658 sections in the Companies Act.
The Constitution of India does not specifically prescribe discrimination on the ground of disability, but it does contain non-discriminatory provisions that guarantee equality and equal opportunities for the citizens as in Articles 14 and 16. It not only guarantees right to life and personal liberty but also directs the State through Article 41 to make effective provisions in consonance with the complementary principles of "non-discrimination" and "reasonable differentiations".
"During the 90s, the judiciary began to learn the art of 'Judicial Governance'. Be it adhoc, be it mere expedient, but immediate and effective steps were taken to remove social aberrations, through the Court. The Court decided to assert. It promoted a new judicial culture. In the least it sought to compensate for and repair dysfunction in the administrative process." (2)
India had enacted Persons with Disabilities (Equal Opportunities, Protection of Rights and Fuller Participation) Act of 1995 (PWD Act) in fulfillment of its obligation as a signatory to the proclamation on the full participation and equality of people with disabilities in Asia Pacific region. In 2002, the Court took suo motu action by directing the then Cabinet Secretary to promote a National Policy to address issues faced by persons with disabilities under Section 8(2)(b) of the Persons with Disabilities Act.
The Courts were dispensing justice with a view to righting wrongs or fashioning remedies where none exist like in the case of Visakha v. State of Rajasthan wherein Courts have given a detailed description of what can be construed as "Sexual harassment in workplaces".
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) came into being in 2007. Activists and NGOs sprung into action to capitalize on this new found enthusiasm. Not willing to be left behind in this pursuit of appreciation and applause from outside, the legislative has woken up from its deep slumber and decided to look at a broader understanding of 'disabilism' as a concept. Thus the Draft Disability Act, 2011, was born.
Lord Denning, famous Judge of England had once written :
"Law makers should keep the language so that the law can be understood by the people for whom it is meant - but invariably the actual users never understand the language of the law and lawyers use their skills to confuse the Judges."
This draft is far from being comprehensible to the lawyers, leave alone the disabled. It seems to be more in the league of an effort in "Cut and Paste" from UNCRPD by borrowing a section here and a section there. The 37 pages and 44 Articles of UNCRPD have been stretched to 118 pages of the present Draft.
The Draft suffers from serious lacunae; major changes have to be made in order to make it workable. Part-I of the present draft particularly, Section 2 dealing with Definitions, is extremely confusing. This definition of 'persons with disabilities' does not give a clear, unambiguous definition of the persons for whom the Act is meant and when translated into any vernacular language, will prove to be disastrous!
The definition of the earlier PWD Act may be adopted and may be expanded to include any other impairment which hinders full and effective participation in the society as certified by the Medical Board as prescribed under the Rules.
Part-V of the Draft refers to Regulatory and Adjudicative Authorities. Few ideas need to be borrowed from the Consumer Protection Act, namely:
- 3 tier Courts should be established;
- The modalities of appointment of President of National and State Disability Courts should be adopted;
- Any registered organization can move the Courts on behalf of mentally challenged children.
In 1999, being increasingly concerned about the need for affirmative action in favour of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability, a National Trust Act was set up to be "promotive, proactive and protectionist" in nature. It sought primarily to uphold the rights and facilitate guardianship (where necessary) and address the concerns of those special persons who do not have their family support. It provides for formation of Local Level Committees (LLC) for deciding on the issues of Guardianships. Only 14 cases of guardianship have been registered in the last 11 years by Local Level Committees of Orissa and around 1400 for the disabled children of the entire nation.This is an ample proof of the fact that the National Trust Act has not served the purpose for which it came into force. Incidently even the Draft Disability Act in Section 20(9) does not refer to National Trust Act at all,instead it refers to the Guardians and Wards Act (8 of 1890).
Hence, the National Trust Act should be repealed and all the money collected may be transferred to the Disability Fund as per the Disability Act, 2011.
Like Ostriches, it is better that we delve deeper into our available legal statutes than be blown away by the winds of the International thinking. Our provisions have to be insular suited to our own environment. We should not be unduly awed by legislation which is "tempered in its application" to English environments. Concepts of disability cannot be divorced from the ethos and the socio-economic matrix. It has to be moulded into the sense of justice of the community in order to inspire confidence, enjoy sanctity or even command obedience. If the aforesaid suggestions are not adhered to, this draft is "capable of being an instrument of the most monstrous injustice when administered in an atmosphere different from that in which it had grown up". (1)
(1)"Justice in India" Gobind Das, Bar-at-law
(2)"Supreme Court in Quest of Identity" Gobind Das,Senior Advocate,Supreme Court.