On 2/27/14, Poonam <[email protected]> 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 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 nothing. It is > important that all disabilities are similarly positioned so that they > can work on the passage of a robust CRPD consonant legislation from a > level playing field. This is a situation of inequity which needs to be > immediately remedied. Since the two Houses are not in session and the > enactment of the new law will necessarily take some time, the > government should use its power under Article 123 to amend the > Disability Act of 1995 to include all those impairments which would > have obtained inclusion through the Bill of 2014. At the same time the > inadequacies of the Bill of 2014 would be rectified by the House > Committee. By adopting this hybrid policy of activism and restraint > the Government could do right by all sections of the disability > community. > > > > Register at the dedicated AccessIndia list for discussing accessibility of > mobile phones / Tabs on: > http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in > > > Search for old postings at: > http://www.mail-archive.com/[email protected]/ > > To unsubscribe send a message to > [email protected] > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > > Disclaimer: > 1. Contents of the mails, factual, or otherwise, reflect the thinking of the > person sending the mail and AI in no way relates itself to its veracity; > > 2. AI cannot be held liable for any commission/omission based on the mails > sent through this mailing list.. >
Register at the dedicated AccessIndia list for discussing accessibility of mobile phones / Tabs on: http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in Disclaimer: 1. Contents of the mails, factual, or otherwise, reflect the thinking of the person sending the mail and AI in no way relates itself to its veracity; 2. AI cannot be held liable for any commission/omission based on the mails sent through this mailing list..
