Consensus Paper

Consensus Paper on Substantive Content of New Law

Explanatory Note

This consensus paper is primarily a prose record of the decisions taken under each segment of the proposed Act by the concerned sub-group after deliberating with the legal consultant. The deliberations were held on the strength of the base paper developed by the sub-group after dialoguing amongst themselves and with other stakeholders and the agenda prepared by the legal consultant.

This paper:

  • Presents the structure and substantive content of each chapter of the Act.
  • Flags those issues on which no consensus was reached and which the sub-group desired should be discussed in the big Committee.
  • Records those questions on which further research was desired by the sub-group.

The paper is being presented in order to seek approval from the full committee on the decisions reached by the sub-group whether with or without modifications/additions or deletions. The decisions reached by the Committee will be the basis of formulating the Working Draft of the Act.

By way of abundant caution it is restated that this paper is only a prose record of what the new law could include. It is not the text of the New Law. In order to obtain the context of the deliberations and decisions, it needs to be read along with the base documents and agendas of the sub group meetings.

Whilst considering the recommendations of the sub-group the Committee may also need to consider the suggestions made by civil society participants. The oral submissions made during the 29th Sep to 1st Oct meeting have been incorporated in the minutes of that meeting.

Statement of Objects and Reasons

A statement of Objects and Reasons is included in the Bill by which an enactment is introduced in Parliament. The importance of this statement in legal parlance is that whenever any dispute arises as regards to the correct meaning of any text in a legislation, the statement objects and reasons is often consulted by courts in order to arrive at the meaning intended by the legislature. Keeping this information in view the sub-group decided that the Statement of Object and Reasons of the new law would include the following:

  • Record the reasons for the enactment of the statute
  • These reasons would amongst others be as follows:
    • The ratification of the CRPD and the need to enact a disability rights law which was in harmony with it.
    • This would especially require a legislation which was in consonance with the social model of disability; recognized the full legal capacity; civil and political rights; and social economic and cultural rights of all persons with disabilities;
    • To formulate a disability law which learns from the experience of implementing the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act of 1995 and continues to build upon the progressive jurisprudence developed by the Indian Courts in furtherance of the rights of persons with disabilities.

Preamble

The Preamble is a part of the statute but like the objects and reasons it has no binding force. Courts of Law examine the preamble only when there is any ambiguity or dispute in the text of the statute. A preamble can record the reason why a particular statute is being enacted or it can capture the spirit with which a law is being formulated. Thus, for example, the preamble to the New Law could narrate how the making of this law has become necessary subsequent to India ratifying the UNCRPD; it could also articulate the hopes, aspirations and vision of persons with disabilities.

After consultation the sub group on Preamble and definitions decided that whilst mention of the UNCRPD shall be made in order to explain why the union was making a Disability Rights Law, a substantial part of the preamble shall be evocative in content. The evocative part of the Preamble should highlight that disability is an evolving concept which could not be exhaustively and permanently defined. The preamble shall also recount how disability was an integral part of human diversity and why the contributions of persons with disabilities needed to be duly recognized by the Indian polity. The role of the Preamble would be to create another image of PD rather than the existing stereotypical image. This positive rhetoric would assist in educating judges and administrators when they encounter disability related cases for the first time. The preamble could thus become an important instrument of awareness raising. It was decided that the Preamble should be crafted by drawing upon the principles formulated by the civil political rights group and human rights instruments. Such an evocative preamble was considered necessary to set the tone for a rights based statute insofar as it would guide both the State and the civil society on how disability rights needed to be understood, interpreted and implemented.

Title of the New Act

There was some discussion around the question of whether the new law should have a new title or retain the old one. It was suggested that retaining the old title could be one more method of saving the progressive jurisprudence of the 1995 Act. However no decision was taken on the matter and the issue was referred to the full Committee for its opinion.