Tuesday, March 4, 2014

How do you make a bad law worse - Amba Salelkar & Rijul Kochhar.

Children of a Lesser Law : Yahoo News

How do you make a bad law worse? Enact it by way of Ordinance, three months before elections.

By Rijul Kochhar, Goutham Shivshankar and Amba Salelkar | Yahoo India – Mon 3 Mar, 2014

If there was any silver lining at all to be spotted in the pepper spray clouds of our Parliament’s abominable February session, it was that the Telangana issue precluded hurried passage of the deeply flawed Rights of Persons with Disabilities Bill 2014 (the “RPD Bill”). 

The Bill had been introduced in the Rajya Sabha on February 7, 2014, amidst immediate calls for its referral to a Parliamentary Committee by Members of Parliament. That silver lining is fast fading, however, with news reports now suggesting that the RPD Bill, along with other important anti-graft legislation, may be pushed through by the ordinance route.

This development is deeply disturbing: not only does it eliminate all possibility of any meaningful legislative debate on several contentious provisions of the Bill which will have far-reaching effects for persons with disabilities if enacted, it is also yet another instance of flagrant abuse of the presidential power to promulgate ordinances. Moreover, the promulgation of this deeply flawed version of the RPD Bill keeps intact the lacunae of the version approved by Cabinet and ends up harming all persons currently living with a disability in India.

The Power

Under the constitutional scheme (Article 123), the President is permitted to promulgate ordinances when the Houses of Parliament are not in session, only if he is satisfied that circumstances exist which render it necessary for him to take immediate action. Unlike other acts of the President which are executive in nature, the promulgation of an ordinance is regarded as a legislative act, and will have the same force and effect as an Act of Parliament. Our constitution places constraints on executive power and certain things, such as the imposition of tax, or providing for a procedure for the deprivation of life or personal liberty, may be done only by legislative acts; the power to promulgate ordinances exists in order to enable the government to quickly respond to a situation requiring urgent legislative action when Parliament is not in session. 

This “immediacy” requirement is however only in theory; what happens in practice, is something entirely different, as law scholar Shubhankar Dam notes in his recent book on the subject of ordinances. Historically, the ordinance-making power has been routinely used as a substitute to the legislative process, with no real regard being paid to whether it is the appropriate route to take as a matter of constitutional propriety. Ordinances have even been passed just a few days before a Parliament session is to commence. This trend has, in part, been encouraged by the reluctance of the Indian Supreme Court to effectively rule on the extent to which the President's legislative powers exist, with the exception of D.C. Wadhwa's Case, where the Supreme Court came down hard upon the executive in Bihar for almost taking over the role of the Legislature in making laws, not for a limited period but for years together in disregard of the constitutional limitations, by ordinances which were being re-promulgated. This was held to be clearly contrary to the constitutional scheme. Viewed from the perspective of such historical abuse of the ordinance power, the resort to the ordinance route to enact the RPD Bill is not unusual. 

The Problems

Nonetheless, enactment of ordinances remain hugely problematic for two reasons: firstly, the ordinance-making process is screened from public view. In case of the RPD Bill, which was already controversial for having been changed drastically from original drafts without release to the public, it will not be known whether the proposed amendments by the Ministry for Social Justice and Empowerment, sought to be introduced during the discussion of the Bill, would be included in the ordinance or not, or whether these amendments would face the same fate of the proposed amendments to the Whistleblowers Bill. Even these amendments are far from being satisfactory to civil society beyond the organizations which had proposed them to the Cabinet. 

Secondly, unlike ordinary legislations passed by Parliament, ordinances are by their very nature temporary, unless ratified subsequently by both Houses of Parliament in the immediate next legislative session after promulgation of the ordinance, or re-promulgated. The potential confusion this temporariness may create is perhaps manageable when an ordinance is brought in a space where there is a legislative vacuum. However, the RPD Bill does much more than fill a legislative vacuum – it repeals the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the “1995 Act”) and in the process, dismantles and re-builds from scratch the bulk of the existing framework of rights and protections afforded to persons with disabilities in India. The RPD Bill, if enacted, would be effectively shutting down existing structures and implementing new ones -  ostensibly to give effective realization of the rights of persons with disabilities. The extent of confusion that will be created in an already inaccessible system needs to be therefore considered seriously. 

Enacting penal legislations like anti-graft laws, or even the earlier instance of the inexplicable “rape law” ordinance post the release of the Justice Verma recommendations, are relatively simpler to implement, even when enacted in this manner. They are effectively notifications of substantive law, all to be largely governed under the existing institutional framework of the common Criminal Procedure Code. In the case of specific fields of law, like disability law, which create their own ecosystem of legislation, the procedure that exists is found within the statutes themselves, from the laying down of rules, notifications etc. which are collectively known as delegated legislation. 

All of the rights which exist under the RPD Bill are to be enforced by various bodies such as the District, State and National Commission for Persons with Disabilities. The constitution of these Commissions depend heavily on the rules to be notified in this regard. It is hard to imagine a circular for applications to these Commissions without rules on terms of service, salaries etc. The procedure for rule making under the RPD 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 concerned Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is thus an elaborate process for these rules, and the concerned Department will have up to six months from the date of closing of comments to finalize them. Bodies appointed for monitoring of the rights of persons with disabilities under the Bill, setting standards with regard to accessibility, etc., are all to be constituted subsequent to the framing of rules, which means that in case of any grievances, there is effectively very little option for redressal under the ordinance. Therefore, with no watchdog, either to enforce provisions or respond to grievances, the question is whether the so called beneficial provisions of the law will come into force at all. At worst however, this would render the ordinance harmless – but this is just the beginning.

The Practice

In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once also affects that larger lived experience of lives lived with a disability. Given this centrality of certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Cabinet approved RPD Bill. 

One important difference between the 1995 Act and the RPD Bill is the inclusion of disabilities which were not recognized under the 1995 Act. The 1995 Act had no definition of disability – instead, it listed blindness, low vision, hearing impairment, leprosy cured, locomotor disability, mental illness and mental retardation, and by implication, multiple disabilities (two or more of the listed impairments). The RPD Bill retains the first 6 categories of impairments, removes “mental retardation”, and includes autism spectrum disorder, cerebral palsy, chronic neurological conditions, deafblindness, multiple sclerosis, hemophilia, intellectual disability, muscular dystrophy, specific learning disability, speech and language disability, thalassemia, sickle cell disease and multiple disabilities as “specified disabilities”.

It is not just the label of the “specified disability” which is of importance. The percentage of the disability becomes crucial – 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 “specified disability” who are certified to have more than 40% of the disability. Persons crossing the 40% threshold are termed as persons with “benchmark disabilities” as certified by the certifying authority under the Bill. These “certifying authorities” are to be notified by the “appropriate Government”, increasing the scope of delegation of legislation to nominate these entities, and uncertainty along with it. 

There are two groups of persons under this proposed ordinance, therefore: those already recognized as persons with disabilities under the 1995 Act, and those who will be recognized as persons with disabilities now. For persons who were earlier certified under the 1995 Act, Section 117 of the RPD Bill states that while the 1995 Act is repealed, 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. However, unlike other statutes which repealed earlier statutes which granted certification, for example, the Motor Vehicles Act 1989 (Section 217 (2) (b)), and the Trademarks Act, 1999 (Section 159),  this “repeals and savings clause” does not explicitly and specifically validate certificates issued under the repealed Act. In absence of this express clarification, bureaucracies and offices will demand certificates from such persons as per the ordinance’s requirements, viz., “as certified by the certifying authority”, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The effect would be that although accrued rights to persons with disabilities under the 1995 Act cannot be taken away from them, they could be asked to produce certificates under the new Act to get any benefits going forward. A change in law without adequate safeguards and protections for those living under the existing law, brings an emergent scenario where existing rights, recognitions and certificates, would lose their traction; they would become useless. 

Spare a thought also for the unique case of the derecognized certification of “mental retardation” - and the complete lack of clarity as to how this situation is to be addressed under a new law.

- The Illusion of Instant Recognition

One of the reasons for the supposed urgency on the part of the UPA government is the extending of benefit of recognition and reservations to the new categories of disabilities. This recognition is nothing but an illusion. For, without the development of medical protocols which emerge out of the rules following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate—none of these newly included categories of disabilities can be judged by the “certifying authority”. It took the government 6 years to come up with the appropriate guidelines for evaluation of disabilities after the 1995 Act was enacted, and Rules reflecting this came into being in 2009. The new categories of disabilities that the RPD Bill envisages for inclusion will involve similar debates and discussions, though ones hopes it takes months, rather than years. This ultimately depends upon when the government, which is in the process of being dissolved, will constitute a mechanism to decide this. Rules and medical protocols, which would ensure recognition and the availability of resources by the state, can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation – an Act of Parliament – and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited.

What’s more, the certification process is certainly not easy – cumbersome procedure had ensured that only 22% of persons with disabilities had obtained certificates from 1995 to 2007. Thus, to say that the ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. And since everything hinges upon the certification of “benchmark disabilities” - reservation in government employment, reservation in higher education, reservation in poverty alleviation schemes, social security, reservation in housing schemes, and even the ability to apply for the grant of “high support” - the ordinance amounts to nothing, and in fact goes a step ahead to disenfranchise those who have rights to these by virtue of existing law and judicial precedent.

Temporary Yet Permanent

The Supreme Court's ruling in Bhupendra Kumar Bose's Case has held that everything done or initiated under an ordinance during the period it is in force remains permanently valid, and is considered legal. Even though the ordinance is itself temporary, actions taken under it would have permanent implications. This precedent is terrifying, because as pointed out time and again, the RPD Bill as it now stands creates a regressive regime, even if it will be in existence for a few months. For the limited period of time, pregnant women with disabilities can be forced to undergo abortions against their will, children can be pulled out of neighbourhood schools and forced to go to special schools, no matter how far they are from their residence, persons with disabilities will face fetters on their exercise of legal capacity, and for the first time, persons with disabilities will be allowed to be discriminated against on the basis of disability as long as it is a proportionate means to a legitimate aim – and it will all be perfectly legal, even if a new government lets the ordinance lapse. 

Reservations in government employment and higher education for persons with disabilities for the coming year would be endangered simply because there is no clarity either on their existing legal status as persons with disabilities, or on the permanence of the law itself. This ambiguity would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the ordinance will repeal in the 1995 Act. 

Uncertain future

There is no guarantee as to when this nightmare by legislation will end for persons with disabilities. The ruling of the Supreme Court in the D.C. Wadhwa case does allow for re-promulgation in cases where the Legislature may have too much legislative business in a particular session or where the time at the disposal of the Legislature in a particular session is short. Continued re-promulgation of the RPD Bill as an ordinance on such counts is likely, especially if a new government comes to power at the Centre. Disability is not considered to be a political issue, and in that case, there is also the danger of Parliament ratifying the ordinance also without any further debate on the issue. Prior experience with the 1995 Act also suggests that it may be difficult to resolve any flaws in the RPD Bill after its enactment through the amendment process. When the 1995 Act was enacted, a committee was constituted almost immediately to suggest amendments to strengthen the law. The result? None whatsoever – the Act was never amended. The 1995 Act has behind it 20 years of rule-making and judicial precedent, which may all just disappear by the signature of one person behind a closed door. If this is not a violation of the right to life of persons with disabilities, without the due process of law being followed, then what is?

Amba Salelkar is a lawyer working with the Inclusive Planet Centre for Disability Law and Policy, Chennai. Goutham Shivshankar is an Advocate at the Madras High Court. Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics.

Source: in news yahoo dot com

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