Tuesday, Oct 21, 2014

A policy of activism and restraint

Enacting the disabilities bill through the ordinance route would usher confusion and chaos, and could cause all disabilities to lose legislative protection. PTI Enacting the disabilities bill through the ordinance route would usher confusion and chaos, and could cause all disabilities to lose legislative protection. PTI
Posted: February 25, 2014 12:30 am | Updated: February 24, 2014 11:38 pm

Amita Dhanda

Government should use the ordinance route, not to push the 2014 disabilities bill, but to make the 1995 act more inclusive.

In the realm of disability rights, the events of the last month have been controversial. The government obtained cabinet approval for the Rights of Persons with Disabilities Bill, 2014, which does not meet the standards prescribed under the UN Convention on the Rights of Persons with Disabilities (CRPD), as it reinforces popular stereotypes instead of challenging  them, and permits discrimination rather than prohibiting it.

It also moves backwards on questions of autonomy, choice and liberty. Due to these regressive features, segments of the disability sector have criticised the bill. The bill’s supporters pointed to its inclusion of 13 new impairments and the enhanced percentage of job reservation. Since the losses were outweighing the gains and many provisions required fixing, the chairperson of the Rajya Sabha referred the bill for consideration by a House committee — the most appropriate solution.

The dust had barely settled on this decision before another controversy engulfed the disability rights legislation. There are rumours that the government is planning to enact the bill as an ordinance. Two questions are being raised: one, can the government enact the bill through an ordinance after referring it to a House committee? And two, should the government take this route?

Under Article 123 of the Constitution, the president has the power to make law through ordinances, provided that first, both Houses are not in session and second, the president is satisfied that circumstances exist which render it necessary that immediate action should be taken. 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 because it needed more work. It was only introduced in the House and sent to the committee, and no urgency to enact the bill was expressed or shown.

Any effort now to enact the bill as an ordinance, after it has been referred to the House committee, would, in light of the Supreme Court’s ruling in D.C. Wadhwa vs State of Bihar, be seen as a colourable exercise of power and a fraud on the Constitution. On a plain reading of the Constitution and by relying on judicial decisions, it can be stated that the president cannot enact the bill by promulgating an ordinance.

It is also important to ask whether the government should enact the bill by using an ordinance. While considering this question, we should appreciate that disability rights is not an unoccupied field. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 already controls the area. If the new continued…

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