Consensus Paper

Additional Decisions required from Full Committee

  • Other than according its approval to the sub-groups suggestions on the dual definition, the Committee would need to consider whether the enumeration made in the Act would be the same for all entitlements or should they vary according to the nature of the entitlement?
  • The Committee may also wish to consider if they would wish to enhance the menu of entitlements in order to address the specific concerns of particular groups.

Definition of Barrier

Since the sub group opted for the social model of disability, a much deliberated question was whether the definition clause should include a definition of "barrier". No final decision was taken on this question and it was decided that the matter may be deliberated again in the full Committee.

Establishment and Other Authority

The UNCRPD has placed a number of obligations on private entities especially in relation to Accessibility. Section 41 of the Persons with Disabilities Act, 1995 asked for appropriate Governments and local authorities to provide incentives to employers both in the public and private sector to ensure that at least 5% of their work force is composed of person with disabilities. With increased liberalization and privatization it was felt that both in relation to job reservations and accessibility obligations, it would be desirable to mandate rather than only incentivize the duties of the private sector towards persons with disabilities. To that end, the sub group proposed a definition of establishment which included the private sector. Upon further discussions with the Legal Consultant it was realized that the jurisprudence surrounding establishment could make such a definition constitutionally questionable. It was therefore suggested that the case law under Article 12 of the Constitution on how other authority has been defined to bring in private players shall be duly researched to explore if that is a constitutionally more sound view of holding the large private players accountable.

Subsequent research has shown that the Committee may be better advised combine the article 12 jurisprudence with the definitions relating to establishment in labour legislations. In this manner without unduly affecting the small businesses the Committee may be hold the private player accountable. An updated report of this on going research shall be presented to the Committee in the 19th-20th Oct meeting in order to enable the Committee to decide upon the most suitable way of holding the private player accountable.

Extent of the Law

The sub group recommended that instead of the routinely excluding Jammu & Kashmir, keeping in view the real need of this law for persons with disabilities in that State this provision be so drafted that it specifies the condition on the fulfillment of which the law would apply to J&K. Thus this section should provide that this law would apply to the whole of India; however its application to the State of J&K shall be specified by the President only after the government of J&K gives its concurrence on the application of this law to that State.

Coming into Force

There are various legislative techniques by which a statute is brought into force after it has been passed by both houses of Parliament and signed by the President.

  • One method is where the statute comes into force as soon as it is signed but this is a rare technique primarily because most statutes require some ground level preparation before they can become operational law.
  • The other technique which is very common is to confer the power of enforcement on the Central Government which then decides when is it in a state of readiness to bring the Act into force. The difficulty with this technique is that it places the matter entirely within the discretion of the Government and no remedy is available against undue delay. There are several instances where a duly enacted statute was never brought into force.
  • A third method is where the legislature itself settles the time within which a statute shall come into force. The advantage of this technique is that whilst it gives the government time to make arrangements on the ground, it does not leave the choice of the legislation becoming operational law on the government.
  • After deliberation the sub group was of the opinion that it would prefer to take the last option in relation to bringing the New Law into force.