India needs comprehensive overarching legislation to address problems common to all disabled people as well as laws that cover specific disabilities
In recent weeks, The Hindu has published an editorial and an article referring to the one-law theory for disability legislation. Those who argue for one law are convinced that a multiplicity of disability laws is disadvantageous, while those who argue for multiple laws are convinced that having one law will only serve to paper over the needs of a diverse range of people with disabilities. The arguments by both camps are fallacious. This is how:
Argument: There should be only one common law for all persons with disabilities, and, there should be no specific law for persons belonging to any specific category of disabilities. Having more laws than one will adversely impact the unity of the movement of persons with disabilities. In fact, more laws than one for persons with disabilities will divide them and will eventually bring about fragmentation in their movement.
Counter-argument: A split or division in a movement cannot be blamed on the multiplicity of laws. They happen for ideological differences or personality clashes. Can anybody argue that the women’s movement will disintegrate because there exist various legislations to protect and promote various aspects of their rights? The fact is that legislations on specific issues are reflective of the state’s resolve to address those issues in a focused manner. This explains why we have specific legislations on prohibition of dowry, protection of women against domestic violence, equal pay for equal work for women, etc. Besides, the Constitution also addresses the commonality of gender/sex-based discrimination, by including gender as one of the prohibited grounds of discrimination.
Persons with different types of disabilities do share certain commonalities, for example, on issues of impairment-based discrimination. While constitutionally, there exist no explicit safeguards against discrimination for persons with disabilities, we do have a common law in the form of Persons with Disabilities Act that covers various major categories of persons with disabilities. This law will now be replaced with an altogether new law which will be in consonance with the U.N. Convention on the Rights of Persons with Disabilities (UNCRPD), and which will include and benefit all persons with disabilities. We also have specific and dedicated legislations on disability, such as the National Trust Act, the Mental Health Act, and the Rehabilitation Council of India (RCI) Act. Understandably, these dedicated legislations will also be either amended or replaced with new legislations so that they are in harmony with the UNCRPD. Since persons with some categories of disabilities are more marginalised and vulnerable compared to other persons with disabilities, existence of additional and specific and dedicated statute for such persons would strengthen the disabilities rights movement instead of weakening it, as erroneously apprehended by some. Moreover, there are other areas in which both common law and specific law exist. For example, while the Indian Penal Code is a substantive common law on crimes, nothing has prevented us from enacting any number of laws on specific crimes under dedicated statutes, such as the Prevention of Food Adulteration Act, or the Prevention of Corruption Act.
Argument: Having just one law will ensure single-window service to all persons with disabilities and will also cut down costs of implementation and monitoring.
Counter-argument: Single-window service or multiple-window service has nothing to do with the number of legislations. First of all, we need to understand that no one can ever get all services at or from one place. If I want a scholarship for my education, for example, I have to approach the education department. Similarly, if I need assistance under a social security scheme, I must approach the Department of Social Justice and Empowerment.
Persons with disabilities are not a homogenous group, and it would be impractical if all the implementation and monitoring mechanisms under the various disability legislations were clubbed into one entity.
Argument: Existence of more laws than one on disability will ghettoise/isolate some persons with disabilities and will enhance their stigma.
Counter-argument: Where, in the first place, is the question of ghettoising/isolating some persons with disabilities when all persons with disabilities will continue to be part of a common law and will also benefit from it?
Second, stigma stems from erroneous and negative attitudes, preconceived notions and entrenched prejudices. Stigma has nothing to do with the number of legislations on disability. It can be reduced and eliminated through education, orientation, awareness and capacity building and sensitisation.
Argument: Why can’t we have an omnibus Act similar to the Equality Act, 2010 of the U.K.?
Counter-argument: Equality Act, 2010 in the United Kingdom covers many vulnerable groups including, but not restricting to persons with disabilities. In other words, persons with disabilities are only one of the various disadvantaged groups covered under the Act. But this has not prevented the U.K. from continuing with the existing Disability Discrimination Act (a common law) or with the Copyright Amendment Act for the Visually Impaired (a visual-disability specific legislation) which came into force from October 2003.
Argument: All the authorities on disability should necessarily form part of that “only one law”.
Counter-argument: This is utterly unacceptable. While certain authorities can form part of the same statute, there are other authorities that are created under dedicated statutes depending on a number of factors including their wide range of powers, comprehensive nature of their mandate, and also their elaborate structures. Creation of an authority under a dedicated statute imparts to it, for all practical purposes, greater visibility and higher stature. Therefore, the idea of clubbing the RCI, the National Trust, etc. under one statute does not find favour with me. Even the proposed disability rights authority envisaged in the currently available working draft of the new law should be set up under a dedicated statute.
In sum, the best way forward is to have a common law to address commonalities, and specific laws to address specificities.
(Prasanna Kumar Pincha is Chief Commissioner for Persons with Disabilities, Government of India.)