----- Original Message ----- From: Amba Salelkar To: [email protected] Cc: Pavan Muntha ; [email protected] ; kragu ram ; [email protected] ; Anita Ghai ; J P Gadkari ; Dipendra Manocha ; [email protected] Ketan Kothari ; [email protected] ; Jo Chopra ; Basavaraju ; Sayaji Hande ; Dheepakh PS ; Reena Sen ; Anuroopa Giliyal ; prateeksha sharma ; Radhika Alkazi ; [email protected] ; Trinayani Ritika Sahni ; indumathi rao ; Sunil Abraham ; Manisha Gupte ; VIDYA SAGAR ; kanchanpamnani ; [email protected] ; [email protected] ; [email protected] ; Asif Iqbal ; [email protected] ; Sai Padma ; Syamala G ; Saptarshi Mandal ; [email protected] ; Jeeja Ghosh ; Val Resh ; Suranjana Ghosh Aikara ; Mitra Jyothi ; Shakeel Mohammed ; [email protected] ; Punitha Suresh ; Dr. Sam Taraporevala ; [email protected] ; Shivani Gupta ; National Platform For The Rights of the Disabled (NPRD) ; Prasanna Kumar ; [email protected] ; [email protected] ; anindita btamta ; sudha kaul ; Nazir ; Deepak Thanumalaya m eenakshi nathan ; Anandhi Viswanathan ; Vibha Krishnamurthy ; Rajiv Rajan ; Anil Joshi ; [email protected] ; Ruma Banerjee ; Shanti Auluck ; Amar Jain ; [email protected] ; Sudha Ramamoorthy ; Ramakrishnan ; srinu vasulu ; Maneesh Gupta ; Charudatta Jadhav ; Bhargavi Davar ; [email protected] ; [email protected] Ketan Kothari ; sudha ; Meenakshi Balasubramaniam ; Kotian, H P ; Rishikesh K ; Babu Vijayakumar ; Nirmita Narasimhan ; Kakarla Nageswaraiah ; Action for Autism ; [email protected] ; Chidambaranathan ; [email protected] ; Andhjan Kalyan Trust Dhoraji ; Aarth Astha ; [email protected], poonamnatarajan ; shekhar borker ; Mrinalini Ravi ; Dlu South ; Samarthyam India ; [email protected] ; [email protected] ; viakalathur sunder ; [email protected] ; [email protected] ; rijulkochhar ; Srinivas Karnati ; sudhakara reddy ; Javed Abidi ; J L Kaul ; Dhana Sekar ; Rajul Padmanabhan ; deafenabled Sent: Tuesday, February 25, 2014 9:39 PM Subject: The Problems with the Disabilities Ordinance.
Am a little disturbed by this http://www.ndtv.com/article/india/government-to-push-key-bills-backed-by-rahul-gandhi-through-ordinances-488218 The ethics of pushing for Ordinances this close to the dissolution of Parliament apart, this is quite an exercise in futility. A starting point to this assertion would be to emphasize that there are two aspects to every law - the substantive law, and the procedural law. The existence of one is quite pointless without the other. With the anti-corruption Bills, as well as the inexplicable Criminal Law Amendment Ordinance of 2012, the procedural law was always governed by the Criminal Procedure Code. With respect to the RPD Bill, the questions are slightly complicated. Unlike the Anti Graft Bills, India has an already existing law which relates to Persons with Disabilities - The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995. The only positive of the Bill really is the expansion of the definition of disability and the scheduling of 19 impairments, including the 7 impairments which were recognized under the 1995 Act. However, most of the benefits under the Bill which exist - including the increased percentage of reservations in employment and higher education - extend only to persons with the "scheduled" disabilities who are certified to have more than 40% of the disability - termed as persons with "benchmark disabilities" under the Act. Certification of disabilities, as we all know, is one of the most painful and dehumanizing procedures for persons with disabilities, but it is a necessary evil to obtain benefits. The Bill provides that the Central Government shall make Rules for manner of application for the issuance of the certificate of disability and form of certificate of disability. This becomes the procedural law. Without the Rules on the Certification, the 12 additional disabilities for whom this Bill was to be a "game changer" get very little besides a (highly unsatisfactory) policy document. The procedure for Rule Making under the Bill requires previous publication. For Rules which have the mandate of "previous publication", Chapter 11.2 of the Manual of the Ministry of Parliamentary Affairs explains that the Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is an elaborate process for these rules and the concerned Department will have up to 6 months from the date of closing of comments to finalize the Rules. In light of the inclusion of newer disabilities and the excessive problems laid down in the assessment methods which exist in respect of the ones already covered under law - including the four disabilities covered under the National Trust Act - this process will be long and will have to be comprehensive. The greater danger however is that the repeal and savings clause of the Bill repeals the PWD Act. Repealing the Act necessarily repeals the Rules as well. Earlier certification, appointments etc. done under the 1995 Act will continue to be valid, but with regard to new certification, there is no clause saving the Rules under the previous law. Therefore, any new certification - be it of a person recognized as a person with disability under the 1995 law but requiring new certification, or of a person who suddenly finds themselves under the new Law - requires new Rules, and Rules which either adopt the current (and controversial) assessment guidelines or set new ones. Similarly, with regard to appointments which are to take place over the next 6 months (an Ordinance can be in force for up to 6 months from the date of reconvening of Parliament) there will be a lot of ambiguity. There is another question. Chapter X of the Bill deals with the certification process. This differs from the procedure under 1995 http://socialjustice.nic.in/disabrules.php?pageid=2 which is clearly to a medical authority etc. Chapter X says the certification process should be done by some "competent authority" to be notified by the Government as per guidelines given by Central Government. Section 56: The appropriate Government shall designate persons, having requisite qualifications and experience, as certifying authorities, who shall be competent to issue the certificate of disability. Section 2 (p) says "person with benchmark disability" means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority Section 117 says (1) The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 is hereby repealed. (2) Notwithstanding the repeal of the said Act, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act. Does this include certification, since this Bill envisages an entirely new procedure for certification? Shouldn't this be made specific? To contrast, enactments like the Motor vehicles act, the trademarks act etc. have specific provisions validating old certification. This savings clause is not specific, and to say that PWDs have to go to Courts to seek enactments which say that yes, old certification is valid, is a bit much. The promulgation of an Ordinance in the case of the RPD Bill doesn't just stop at being pointless. The substantive law which does not require rules for its existence, however, is downright dangerous. The penal offence of terminating the pregnancy of a woman with a disability without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability (undefined under the Bill) and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability will come into force, threatening the reproductive rights of women with disabilities across the board. The provisions which allow for children with benchmark disabilities to be sent to special schools instead of neighbourhood schools if necessary threatens to be applied across the board indiscriminately with no rules or regulations to clarify when this necessity arises and who is to determine the necessity. There is also the question of the reservations in employment and higher education which were promised under the Bill. The other question which arises is whether the suspension of the 1995 Act and the lack of Rules for the 2014 Ordinance, will any reservations which are to be accommodated in any round of appointments/admissions for the next 6-8 months happen at all? 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