Envisioning Grievance Redress in the Persons with Disabilities Act: The Disability Rights Commission and the Commissioners for Persons with Disabilities

Envisioning Grievance Redress in the Persons with Disabilities Act: The Disability Rights Commission and the Commissioners for Persons with Disabilities

Aditya Singh

I.          Introduction

The enactment of the new Persons with Disabilities law will be a giant leap for ensuring the legal empowerment[1] of persons with disabilities. One of the key steps in ensuring the legal empowerment of persons with disabilities is creating and strengthening institutions that respond quickly and effectively to disability rights claims.[2] Unless persons with disabilities find that there are bodies that take their grievances seriously and act on them, they are unlikely to see themselves as right bearing subjects.[3] Therefore, for rights under the new law to have meaning, effective remedies must be available to redress violations.

Before we delve into the failures of the existing structures, it is worthwhile to briefly lay down the relationship between the terms ‘access to justice’ and ‘grievance redress’. A grievance is essentially an injury, wrong, loss or injustice that gives ground for a complaint[4] for violation of a law, or international human rights standards.[5] On the other hand, access to justice is a broader term, and refers not only to the establishment of institutions and procedural rules granting access to all, but also to the substantive laws themselves, and the empowerment of individuals to obtain justice.[6] It calls on the need to ensure that every person is able to invoke the legal processes and receive just and fair treatment irrespective of social and economic barriers.[7] In this context, it must be appreciated that grievance redress is indeed a crucial component of access to justice[8] - access to justice includes the recognition of a right and fair adjudication by a body to redress a grievance and ensure the enforcement of the remedy.

Article 13 of the UN Convention[9] deals with Access to Justice and seeks to respond to the historic exclusion, in many societies, of persons with disabilities from the justice system.[10] Additionally, Article 33 is also relevant to the discussion on ensuring effective grievance redress under the law.[11] Since the new law follows India’s ratification of the CRPD,[12] it is essential to create platforms for grievance redress and effective realization of rights that are in harmony with the spirit of the Convention. In the Indian context, access to justice remains in reality a tremendous challenge for a large section of our society. The challenges to ensure timely grievance redress for persons with disabilities are even bigger. As discussed in detail in Part III of this paper, these challenges multiply for persons with disabilities and they face severe physical, procedural and attitudinal barriers as they approach Courts for grievance redress. Part III underscores this need to create friendly structures that ensure the effective realization of the rights guaranteed to persons with disabilities under the new law and the CRPD.

The Committee responsible for drafting the new law, in its discussions, decided that new authorities have to be created to perform the wide-ranging tasks required to be performed under the new Act.[13] The proposal from the Centre for Disability Studies refers to the creation of a Disability Rights Authority with three wings at the national level – the Regulatory Authority (the standard setting body); the Disability Rights Council (the law and policy review body) and the Disability Rights Commission (for grievance redress in cases of structural violation and grievance prevention). Additionally, on the issue of redress, the first level adjudication would be done at the level of district and state level commissions for persons with disabilities, with the Disability Rights Commission addressing issues of collective denial or violation.[14]

This paper is an attempt to effectuate the provisions establishing the Disability Rights Commission and the District and State Level Commissions for Persons with Disabilities in the new law. It is recommended that the new law should follow a two-pronged approach for redress. First, the law must ensure ensure effective first level adjudication of grievances at the district and state level by creating full-time Commissions for Persons with Disabilities. These shall be quasi-judicial bodies spread across the length and breadth of the Country with the objective of taking justice to the door steps of the people. Secondly, to deal with collective grievance redress for structural or systemic denial of rights, the Disability Rights Commission must be established to act as a complimentary mechanism. By ensuring that all rights of all persons with disabilities are fully protected, this complementarity will mean that that the complaint function of a Commission will offer something that the legal system cannot. Unlike Courts, the Commission will proactively search for structural violations of any civil and political or socio-economic right of a person with disability.

At this stage, it is worthwhile to underline the fundamental difference between the purpose of the national level Disability Rights Commission and the Commissions for Persons with Disabilities. District and state level Commissions are being created because of the felt need to adjudicate disputes in an efficient and friendly manner than is possible in the courts. On the other hand, the ambit of the functions of the Disability Rights Commission is broad – going beyond grievance redress to raise awareness, build capacities and prevent grievances.[15]

With this as the introduction, the rest of the paper is structured as follows. Part II provides a theoretical background to the draft provisions regarding the Disability Rights Commission. Part III details the extraordinary obstacles that are in the way of persons with disabilities as they seek redress in Courts in India. By highlighting the severe problems with the current system, this part underscores the need to look for suitable alternatives for individual redress and provides a background and reasons as to why Commissions for Persons with Disabilities are the best way forward. Parts IV and V present draft provisions relating to the Disability Rights Commission and the Chief Commissioner for Persons with Disabilities as well as the State Commission and the District Commission. The draft provisions are followed by a justification or explanation for the same. The explanation/justification for some provisions also details the possible information that may go into the Rules made under this Act.

II.        Designing a Disability Rights Commission for Structural Violation of Rights

Setting Goals and Objectives

A discussion on the objective, goals and scope of the Commission must flow from the determination of the expected short-term and long-term achievements as well as the anticipated issues to be addressed by the Commission. It is expected that the Disability Rights Commission will successfully move the discourse on systemic denial of disability rights away from the reactive to the realm of the proactive and hence, usher in an evidence-based understanding of inequality.[16] While this proactive approach for the protection of rights is crucial to minimize instances of their abuse, the effective protection of rights would include treating the symptoms of their abuse rather than merely remedying their violations. Therefore, the Commission must be seen as a grievance prevention body – a body not limited to collective grievance redress but also playing a central role in policy intervention, data gathering, education and dissemination as also facilitating resolution of disputes through informal methods.[17]

It is anticipated that the Commission, like several other human rights institutions, will grapple with issues relating to discriminatory policies and practices that lead to systemic violation of rights.[18] An integral part of this function is to ensure that the Commission does not only step in after the violation of rights has happened but seeks to prevent situations that lead to violation and deprivation - a shield to ensure that infringement does not happen. Furthermore, by engaging civil-society participation, the Disability Rights Commission must aim to promote a stronger disability-rights culture and complement litigation and individual redress at the level of the Commissioners for Persons with Disabilities. Therefore, it can be said that the primary goal of the Disability Rights Commission is to mainstream disability-rights concerns, perspectives, and priorities in the workings of government, the formulation of public policy and the “consciousness of society”.[19]

With these as the broad objectives of the Commission, it is proposed that the Commission prepare its own plan of action so as to enable it to respond to the changing needs of persons with disabilities.[20] Similar to the UK Equality and Human Rights Commission, it is crucial that the draft plan of action be published on the website of the Commission so as to allow people to comment and make suggestions regarding the plan.[21] Therefore, the Commission must function and use its powers according to a clearly articulated and publicly reviewed plan, with stated strategic priorities.[22]

Providing an Effective Structure

While determining the composition of a Commission, it is important to ensure that the representation is broad and pluralist with voices from different sectors of civil society. This will be in consonance with the Paris Principles[23] and the “effectiveness factors” of the United Nations High Commission for Human Rights[24] which refer to independent, competent and pluralistic membership. The legitimacy of the Commission will reside in the popular perception that its members are competent, independent and possess a commitment to and expertise in disability rights. Moreover, their background will often dictate their choices in their interaction with outside institutions as they effectively discharge the institutional mandate. It is also crucial to provide for representation of persons with disabilities and women. With such a composition, the Commission will inspire more confidence among persons with disabilities if the members themselves have experienced deprivation and have a record for working for persons with disabilities and other marginalized groups.

Assigning Role and Responsibilities

While not responsible for individual redress, the Commission should be entrusted with the duty to step in to address any series of grievances that raise systemic issues pertaining to full and effective realization of rights of persons with disabilities. In this context, the Commission must be able to respond to complaints and also proactively undertake suo motu investigation. The function of addressing complaints has been central to the other Commissions established in India, including the National Human Rights Commission and the proposed Equal Opportunity Commission.[25] Internationally, the UK Equal Opportunity and Human Rights Commission, the South African Human Rights Commission and the Human Rights Commission of Malaysia (Suhakam) engage in grievance redress by looking into complaints of systemic discrimination. In this context, the experience of the US Equal Employment Opportunity Commission is worth noting. Set up in 1964, the Commission was initially envisaged as an agency’s whose role would be of “obtaining remedies for abuse.”[26] This agency was not expected - or permitted - to attempt to achieve equality proactively.[27] The result was that by the early 1970s, the Commission was already becoming “better known for delay and backlog than for its prowess in investigating discrimination, representing worthy claimants, or securing settlements.”[28] Overtime, as the Commission employed informal methods including mediation, it was able to partially address these issues. Importantly, with time, it seems that the Commission understood its role to be more proactive in the pursuit of equality than the Congress had envisioned. It focused on “large employers that were thought to be discriminating on the basis of race in a systemic manner.”[29] In that sense, by proactively moving from mere complaints, this Commission also examined practices that were leading to discrimination or were likely to lead to discrimination, hence preventing grievances in some cases.

In India, the proposed Disability Rights Commission must be empowered to address individual complaints. However, learning from the experiences of the aforesaid Commission in the USA, the law must ensure that individual complaints are looked into only in cases of institutionalized discrimination or in those cases where only a public agency can be effective through thorough information-gathering and experience. Moreover, grievances can be prevented if the Commission engages in close scrutiny of existing legislations and policies to weed out any discriminatory content. This will form a core part of its function of proactive and suo motu investigation.

The Commission may also play an important role by building capacities of officers involved in informal dispute resolution mechanisms. While a majority of Commissions including the UK Commission for Equality and Human Rights and the South African Human Rights Commission have extensive mediation and conciliation departments, it is suggested that the Disability Rights Commission should engage actively with already existing mediation and conciliation officers and centres and sensitize them to the needs of persons with disabilities. Another key function that the Commission needs to perform is that of awareness building and sensitization. A necessary tool in protecting any human right is to know about the rights to which every person is entitled to and the mechanisms that are available to enforce those rights.[30] This educational task of the Commission will be extremely crucial especially in a vast nation like India with huge gaps in literacy and awareness levels.

Empowering the Commission

The Commission has to be endowed with sufficient powers and resources to fully discharge its functions and perform the challenging roles set up for it. Since grievance redress is not the principal function, it would not require strong punitive or quasi-judicial powers. However, it will require extensive powers to engage in collective redress. It must therefore be duly empowered to conduct inquiries, call for information, institute detailed investigations, and seek explanations. It will have all the powers of a Civil Court to gather information through discovery proceedings.[31] The Commission must be empowered to take effective steps after the completion of inquiry or investigation. This is important particularly because other Commissions in India have failed to address the issue of implementation of their recommendations. The most oft-cited criticism of the National Human Rights Commission, for example, is that it is a toothless body with only recommendatory powers.[32] Hence, it is crucial that the law create a mechanism by which the Government is held accountable to either take action or justify its failure to act upon the recommendations. Since the Disability Rights Commission does not have judicial powers, it should first try to eliminate any discriminatory practice by informal methods like the federal Human Rights and Equal Opportunity Commission of Australia.[33] At the same time, the Commission must be empowered to approach a Court for orders or offer assistance in court proceedings. An added advantage of such an approach is that the Commission would get a chance to present its views on the interpretation of a new legislation and how it should be applied in the given circumstances. It is believed that this will help in developing a rich body of judicial opinion around the law thus fine-tuning the rights and responsibilities under the law.[34]

Ensuring Accountability

The Commission needs to be accountable to the people for its activities and its expenditure. The Commission must be mandated to submit Annual and Periodic reports. This shall strengthen the accountability system and in turn strengthen the effectiveness of the Commission. The Commission is also be accountable to the people who it is mandated to protect and therefore, it is required to publish the reports on its website. Accountability to the public can be enhanced by making sure the annual and special reports are distributed widely in the public sphere. The rules may detail the exact manner in which the Commission shall do this in collaboration with the local disability rights organizations. In addition to reporting, accountability is also enhanced when the Commission collaborates with other organizations and individuals to carry out its functions. Considering that the Commission is operating at the National Level but has to monitor activities and developments across the country, it is essential that it reaches out and builds collaborations for effective fact finding. The Commission may, similar to the Malaysian Human Rights Commission, constitute working groups or panels[35] to get inputs from civil groups including lawyers, doctors, social workers, research institutions and NGOs. Information and reports from these bodies will enrich the Commission's work and enable it to make sound recommendations.[36] Moreover, developing good relationships with organizations working for persons with disabilities will help the Commission in receiving information on disability rights issues and feedback on its own work. This cooperation will be particular helpful in Commission’s function of awareness building and sensitization. The Commission should also develop relationships with other human rights institutions in India as well as international organizations to evolve best practices.

Extraordinary Obstacles for Persons with Disabilities in Accessing Courts: Need for Decentralized Disability Rights Commission

Indian Courts and therefore the administration of justice are characterized by systemic problems, including, delays, pendency, increasing costs and limited legal aid.[37] In 2007, a study report of the India Centre for Human Rights and Law and the Maharashtra State Legal Services Authority, detailed the manner in which the justice system poses massive problems for persons with disabilities.[38] In addition to the problematic legislative framework (which is being remedied by the enactment of the new law), this Report deals with the problem of access to Courts for persons with disabilities at three levels - physical barriers, procedural barriers and attitudinal barriers.[39] For most people with disabilities, approaching a Court is almost impossible because of the inaccessibility. In spite of the fact that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 makes it obligatory upon the appropriate governments and local authorities to provide for ramps in public buildings, adaptation of toilets for wheel chair users, Braille and auditory signs in lifts or elevators, most courts in India do not have these facilities.[40]

Moreover, in an attitudinal sense, courts in India are not friendly to the common man and fail to accommodate persons with disabilities. The basic websites of many Courts in India are not accessible to persons with disabilities and most Courts do not have facilities to provide legal texts and documents in accessible format. In spite of a specific provision in the Legal Services Authority Act, persons with disabilities have faced difficulties in claiming legal aid. Since legal and judicial professionals are often not trained in disability rights issues and are not aware of their particular rights and needs, persons with disabilities face problems at the time of examination of witnesses and in other court processes.[41]

Considering these structural and logistical barriers, it is imperative to create processes and structures that are friendly towards, and can cater to the specific needs of persons with disabilities. In this context, Sally Merry’s research on the relationship between state responsiveness and realization of rights is relevant to show the advantages of a strong individual grievance redress mechanism. Writing in the context of gender based violence in Latin America and Caribbean, Merry provides evidence to show how those systems where most women have their grievances effectively redressed result in women generally becoming more assertive about their rights. On the other hand, when their grievances are treated as unimportant, women get a sense that their rights are not important and drop out of the process.[42] Therefore, it is essential that the enactment of the new law is accompanied by a strong and effective individual grievance redress system which encourages persons with disabilities to move away from their reluctance to approach the justice system. Legal developments around disability rights related issues will depend heavily on the nature of claims brought to the commissions and courts as well as the adjudication of these disputes. With this background, it is suggested that individual redress should be addressed at the level of district and state level Commissions so as to ensure the realization of the rights recognized in the UNCRPD and the new law. What follows is a description and reasons for incorporating this model, together with a discussion on the available alternatives.

The Choice Between District and State Commissions and a National Level Tribunal

During its meeting at NALSAR on the 19-20th, the Committee raised concerns about the realization of various civil and political and socio-economic rights guaranteed under this Act. Broadly speaking there are two ways of doing this in so far as individual rights are concerned. The first approach involves the creation of a National Tribunal dedicated to resolving matters relating to persons with disabilities. This approach has the merit of making a powerful grievance redressing body with specialized members at the Centre level. But this merit also leads to a serious drawback – that of inaccessibility. The experience of Tribunals in other areas is that they are mostly ill-equipped to dispense justice at a large scale because they mostly operate at the national level.[43] Also, there are no real benefits in terms of time and cost as there is always an appeal from the decision of the Tribunal.[44] Rosencranz and Sahu, in their comment on the National Green Tribunal Act, deal with the benefits of regional tribunals and comment the lawmakers for not limiting the Tribunal to the national level.[45] The second approach would take the idea of regional tribunals to the next level by creating decentralized quasi-judicial bodies at the district and state level, a model similar to one followed for resolving consumer disputes. As compared with Courts, these would be relatively cheap and expeditious, and their procedure would be relatively informal. This would help petitioners in bringing local problems to the notice of the commission at little cost. There is also the advantage of specialization because first, they would deal with certain specific kinds of disputes and second, their membership would include non-lawyers who have special expertise in the subject matter of the tribunal’s jurisdiction.[46]

In view of these considerations, I am of the opinion that the law should establish a Commission for Persons with Disabilities at the District and the State Level. These would have quasi-judicial powers and we will be creating a large number of decentralized tribunals. The State Commission for Persons with Disabilities (SCPD) and the District Commission for Persons with Disabilities (DCPD) shall be accessible bodies for primary grievance redress and provide continuous and steady relief. The ultimate aim and fundamental purpose of this is to take justice to the doorsteps and overcome the difficulties of access of a national-level body. While the District Commission for Persons with Disabilities will be the first point of contact for individual grievances, the appellate body shall be the State Commission.

Value in Retaining Role of the High Courts and the Supreme Court

It is further suggested that appeals from State Commission should lie to the High Courts and finally, to the Supreme Court. Unlike the consumer disputes model which creates a national commission for redress,[47] the appeal from the State level commission would go to the respective High Courts. It is important to retain the role of Courts because court cases serve to focus public attention on a problem. Litigation in the higher courts will help establish solid case-law because of more sophisticated adjudication and give persons with disabilities a better understanding of not only the obstacles and constraints to compliance, but also provide a cumulative roadmap that may lead to more effective and sophisticated strategies in future cases.[48] It may also help to inform those who provide technical assistance to do a better and more useful job based on the information acquired through litigation.[49] Unlike other informal methods, in which “victories are often packaged as compromises and publicity is often kept to a minimum”, litigation at the Supreme Court garners a lot of attention and can help district and state level commissions in their own adjudication. This will also help change perceptions within the government and the private sector with regard to the costs and benefits of complying with the new disability law.[50]

Renewed Role of the Chief Commissioner for Persons with Disabilities

The Persons with Disabilities Act, 1995 provides that the Commissioner has the function of looking into complaints with respect to deprivation of rights of persons with disabilities.[51] The Chief Commissioner also coordinates the work of the Commissioners and monitors the utilization of funds disbursed by the Central Government. In the domain of grievance redress, the Office of the Chief Commissioner also works towards “organization of joint mobile courts of Chief Commissioner for Persons with Disabilities and State Commissioners to ensure accessibility of redressal mechanism to the door steps of persons with disabilities.”[52] In light of the proposed creation of district level grievance redress bodies, it is submitted that the Chief Commissioner’s organizing mobile courts will only lead to duplication. Hence, it is proposed that the grievance redressal function of the CCPD should be undertaken by full-time District and State Commissions. The Office of the Chief Commissioner for Disabilities should instead be made responsible for the effective functioning and coordination of the Commissions at the District and State level. Previously, there have been problems in ensuring the creation and sustenance of human rights commissions at the State level and even in the case of the office of the SCPD, a majority of states do not have full-time commissioners. In order to ensure redress on the ground, it is important that the Chief Commissioner is entrusted with the responsibility of ensuring that district and state level commissions are created and all members are appointed, and also coordinating the activities and keeping track of the activities of these commissions.

Part IV – Addressing Structural Violation of Rights of Persons with Disabilities: The Disability Rights Commission

S. 1 - Constitution of the Disability Rights Commission

  1. The Central Government shall constitute the Disability Rights Commission as one of wings of the Disability Rights Authority to perform the functions and duties assigned to it and exercise the powers conferred upon it by this Act.[53]
  2. The general superintendence, direction and management of the affairs and business of the Disability Rights Commission shall vest in the Board of the Commission.
  3. The Board of the Commission shall consist of a Chairperson, ten full-time members and a Chief Executive Officer.[54]

Explanation and Justification

The Disability Rights Commission is being envisaged as a body that will remain at the forefront of understanding new challenges in disability rights. The Commission will be one of the three wings of the Disability Rights Authority and it shall function in coordination and interaction with the Regulatory Authority and the Council. It is proposed that the Commission should be established at the National Level. This is different from the models followed by the National Human Rights Commission established under the Protection of Human Rights Act[55] or the Equal Opportunity Commission Bill[56] which seeks to create Regional Equal Opportunity Commissions. As discussed in Parts II and III, it is submitted that a Disability Rights Commission at the Central Level should be complimented (for collective redress) with Commissions for Persons with Disabilities at the State and the District level (for individual redress).

S. 2 - Appointment of the Chairperson and other members

  1. The Chairperson and other members of the Commission shall be appointed by the President by warrant under her hand and seal.[57]
  2. The Chairperson shall be appointed from amongst persons having expertise and experience in advocacy and research for the rights of persons with disabilities.
The members of the Commission referred to in section 1 (iii) shall include
  1. One member who is a retired Chief Justice of a High Court
  2. One member who is a retired judge of a High Court
  3. One member who is a Senior Advocate designated by the Supreme Court or one of the High Courts and has substantial experience in human rights litigation
  4. One member who is nominated by the Press Council of India and is a journalist or member of the media with experience in reporting of human rights related issues
  5. One member who is or has been a leader from the corporate sector and is to be nominated by Federation of Indian Chambers of Commerce and Industry and the Confederation of Indian Industry
  6. One member who has been a senior member of the civil service of the Union
  7. Four members who are persons who are members of registered organizations working for rights of persons with disabilities
  8. Provided that in constituting the Commission, every effort shall be made to give representation to persons with disabilities and at least four members of the Commission shall be women
  9. (he appointment of the Chairperson and the ten full-time members under this section shall be made after obtaining the recommendations of a Committee consisting of, among others, the Minister in-charge of Social Justice and Empowerment; the Chief Justice of India; the Chairperson of the National Human Rights Commission and the Chief Commissioner for Persons with Disabilities.
  10.  The Chief Executive Officer shall be an official of the rank of Joint Secretary of the Government of India and will be nominated by the Chief Secretary to the Union Government in consultation with the Minister in-charge of Social Justice and Empowerment.

Explanation and Justification

The Commission envisaged here comprises of professional and activists from fields such as law, public administration, commerce and industry, media and has broad representation from persons working within the disability sector. The details of membership of the Commission have been crafted keeping in mind the specific core functions that it shall perform. As an example of how the division of labour could happen within the Commission, the members from the judiciary would have the required skill set to fulfill the function of Suo Moto and Proactive Investigation as well as the function of conduct inquiry on Petition to Stop Large Scale Violation. Similarly, the members from the corporate sector and the media will make a valuable addition in the function of raising awareness and sensitizing all sections of the society.

The Committee that shall appoint the Chairperson and the members includes heads of the concerned ministry, the head of the judiciary, the Human Rights Commission and the Chief Commissioner for Persons with Disabilities.  These individuals generally get a chance to interact with lawyers, judges and activists working for human rights and disability rights and will be able to recommend the appropriate names. In so far as members of the media and corporate sector are concerned, the nomination will be made by the Press Council and FICCI/CII respectively.

S. 3 - Term of Office, Removal and Resignation of Members of the Commission

  1. Every member including the Chairperson shall hold office for a period of four years.[58]
  2. The Chairperson may resign office by submitting a letter of resignation addressed to the Central Government.
    Provided that the Chairperson shall continue in office until the appointment of a successor is made by the Central Government.
  3. A member may resign from office by submitting a letter of resignation addressed to the Chairperson.
  4. The President may by order remove from office any Member including the Chairperson if such member becomes an undischarged solvent; or gets convicted on a criminal charge; or refuses to act or becomes incapable of acting as a member.[59]
Provided that no person shall be removed until that person has been given reasonable opportunity to be heard in the matter.[60]
  1. A vacancy in the Commission shall be filled by fresh appointment not later than three months after such vacancy arises.[61]
Explanation and Justification
This is a general provision with details relating to the term of office, removal and resignation of members of the Commission. The term of office is kept at 4 years. This means that the Commission members will get a chance to prepare and function according to two plans of action, thus affording them the opportunity to revise and improve their functioning. While the provisions pertaining to removal and resignation are similar to other Commissions, this Act shall not refer to unsoundness of mind as a disqualification. Subsequent to the adoption of the paradigm of universal legal capacity with support by the UNCRPD and the induction of this paradigm by suitable provisions in this Act, this disqualification cannot be retained as it is in conflict with the universal capacity paradigm.

S. 4 - Independence and Impartiality[62]

  1. A member of the Commission shall serve impartially and independently and exercise or perform his or her powers, duties and functions in good faith and without fear, favour, bias or prejudice and subject to the Constitution and this Act.
  2. All organs of State shall afford the Commission such assistance that is reasonably required for the protection of independence and impartiality of the Commission.
  3. No member shall conduct an investigation or render assistance in the functioning of the Commission in respect of a matter in which he or she has any personal or pecuniary interest

Explanation and Justification

This provision seeks to maximize the independence of the institution from government. By categorically requiring assistance from the State, this provision ensures the Commission’s independence from influence or control by the government. Also, since there is representation from the Media and the Corporate Sector, there is a possibility of a conflict of interest and this is addressed by reference to recusal in case of personal or pecuniary interest. Additionally, the Rules made under this Act can provide further details on the steps that the Commission may take to ensure fair and unbiased investigation in case a person fails to disclose an interest.

S. 5 - Commission’s Association with Individuals and Organizations[63]

  1. The Commission shall have the power to associate itself with any person or organization whose assistance and advice is desirable for carrying out the purposes of the Commission.
  2. The Commission may constitute Working Groups in specific areas and regions of the Country to assist the Commission in its functions and duties.

Explanation and Justification

Considering that the Commission is operating at the National Level but has to monitor activities and developments across the country, it is essential that it reaches out and builds collaborations for effective fact finding. For example, Commission could request the Chief Justices of the various High Courts in India to appoint a 5 member panel in the State comprising of lawyers and researchers working on disability law and policy to document the violation of rights and present periodical reports. The Commission can constitute working groups to get inputs from civil groups including lawyers, doctors, social workers, research institutions and NGOs. Information and reports from these bodies will enrich the Commission's work and enable it to make sound recommendations. Moreover, developing good relationships with organizations working for persons with disabilities will help the Commission in receiving information on disability rights issues and feedback on its own work. This cooperation will be particular helpful in Commission’s function of awareness building and sensitization. The Commission should also develop relationships with other human rights institutions in India as well as international organizations to evolve best practices.

S. 6 - Conditions of Service of Members[64]

The salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be such as may be prescribed.

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after her appointment.

Explanation and Justification

As in the case of other Commissions, the Disability Rights Commission will be provided sufficient grants by the Central Government. This provision will have to include adequate grants to allow the Commission to carry out large-scale data gathering operations necessary for the discharge of its functions and to hire services of consultants and experts from various fields for purposes of preparation of its reports. The Central Government would pay such sums of money in the form of grants to the Commission, as it deems suitable for the purposes of the Act. The Commission would be expected to maintain proper accounts and records as prescribed by the Central Government and the Comptroller and Auditor General of India. The annual statement of accounts along with the audit report would be placed before each House of Parliament.

S. 7 - Officers and other Staff of the Commission[65]

  1. The Central Government shall make available to the Commission such other officers as may be necessary for the effective functioning of the Commission.
  2. Subject to such Rules as may be made by the Government in this behalf, the Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.
  3. The salaries, allowances and conditions of service of the officers and other staff shall be such as may be prescribed.

Explanation and Justification

The Commission would require and should be provided with an efficient secretariat. The Commission should be able to appoint such other administrative, technical and scientific staff as it may consider necessary and the Central Government would provide it with the same.

S. 8 - Functions and Duties of the Disability Rights Commission

The Commission shall perform all or any of the following functions, namely -

To address any series of grievances that raise systemic issues pertaining to full and effective realization of rights of persons with disabilities

To investigate into and evaluate the enactments, administrative directives and schemes to find out its impact on the rights of persons with disabilities and address the discriminatory content

To examine practices in all sectors which affect the enjoyment of rights of persons with disabilities and eliminate the discriminatory content

To inquire, suo motu,[66] into any structural violation of rights of persons with disabilities on the basis of the feedback received from the Commissioners for Persons with Disabilities

To maintain close liaison with institutions, bodies or authorities similar to the Commission in order to foster common policies and practices and to promote co-operation in relation to the handling of complaints in cases of overlapping jurisdiction[67]

To investigate into specific complaints of any large-scale denial of rights of persons with disabilities

To bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group or class of persons[68] including assistance in terms of fact-finding and research to strengthen the process of Public Interest Litigation

To assist any court in the interpretation of this Act or determination of any issue relating to rights of persons with disabilities

To play a proactive role in ensuring access to justice for persons with disabilities and facilitating mediation and conciliation[69]

To develop and conduct information programmes to foster public understanding of this Act[70], the UN Convention on Rights of Persons with Disabilities, and the role and activities of the Disability Rights Authority

To sensitize and raise awareness throughout society, including at the family level, regarding persons with disabilities, and foster respect for the rights and dignity of persons with disabilities[71]

To undertake research, collection of data and materials relating to persons with disabilities and engage in its dissemination to promote evidence based understanding of disability rights in different sectors[72]

To prepare annual and periodical performance reports if and when considered necessary[73]

To perform any other functions that are incidental and ancillary to the above functions and which will facilitate the discharge of such functions[74]

Explanation and Justification

This provision provides the Disability Rights Commission a broad jurisdiction and the following provisions equip it with powers that are sufficiently strong to enable it to accomplish this mandate effectively. This provision does not only list out the core areas of operation such as suo motu investigation, inquiry on complaint, assistance in court proceedings, undertaking research and raising awareness but it also provides crucial detail on how many of these should happen. For instance, it calls for the examination of both policy and practice for weeding out discriminatory content. Similarly, unlike other Commissions, the Disability Rights Commission would take a proactive role in strengthening Public Interest Litigation pertaining to disability rights.

In addition, there is a general clause that allows the Commission to perform other functions, as it may consider necessary for the promotion of disability rights. This umbrella clause endows the Commission with a potentially wide mandate.

S. 9 - Duty to Prepare a Plan of Action

The Commission shall prepare a Plan of Action[75] within three months of the date of coming into force of the Statute.

The Plan shall have a list of proposed activities to be undertaken by the Commission for a two-year period including an expected timetable for each activity.[76]

The Commission shall publish the Plan in its draft form on its website and disseminate it for comments prior to finalizing it.[77]

The Commission shall review its plan at the end of the first year and if required, revise it in accordance with the changing needs to protect the rights of persons with disabilities.[78]

Explanation and Justification

While the legislation will have broad functions, it is appreciated that the role, responsibilities and functions of the Disability Right Commission will have to respond to the changing needs of persons with disabilities and hence, it is crucial that a detailed plan is prepared. The legislation has broad functions but Commission shall prepare a detailed two-yearly plan of action so as to ensure dynamism in its functioning. As already stated, since term of members and the chairperson will be two years, effectively, each commission will get the opportunity to prepare and act upon a mandate twice. Importantly, this Act mandates the publication of the draft plan on its website for comments and allows for flexibility by mandating a review at the end of the first year when the Commission will have to take stock of how things are going and whether there is a need to alter some features of the plan.

S. 10 – Commission’s Function and Power of Suo Moto Investigation to Determine Cases of Structural Violation of Rights of Persons with Disabilities[79]

The Commission shall conduct a Disability Discrimination and Harassment Inquiry by requiring evidence to be provided regarding any systematic violation of disability rights from various stakeholders.[80]

The Commission shall consult all relevant stakeholders by soliciting written submissions and by organizing meetings and public hearings with individuals and representatives of organizations involved in disability rights issues.

The Commission shall conduct a national survey through a questionnaire which would be in accessible format and ask the respondents about the manner in which the denial of disability rights happened.[81]

The Commission shall on the basis of the Inquiry and the National Survey, identify areas, organizations and policies that are leading to structural denial of rights and record the discriminatory practices and rules in a report.

For the purpose of conducting any investigation, the Commission may utilize the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.[82]

For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilized under sub-section (i) may, subject to the direction and control of the Commission.[83]

  1. summon and enforce the attendance of any person and examine him;
  2. require the discovery and production of any document; and
  3. requisition any public record or copy thereof from any office.

Explanation and Justification

This provision exemplifies the ‘watchdog’ function of the Commission wherein it would be on the constant lookout for any discriminatory policy or practice. This is being envisaged as a function that would engage with the masses as the Commission will be conducting a national survey to identify areas, organizations and policies that are leading to structural denial of rights and record the discriminatory practices and rules in a report. Since the Commission does not have a primary adjudicative function, its role in grievance redressal will require it to engage in proactive investigation of the nature envisaged in this provision. This provision gives the Commission the requisite power to utilize the services of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be.

S. 11 - Power to Conduct Inquiry in case of Petition or Complaint

  1. The Commission while inquiring into any petition or complaint, may call for information or report from the Central or State Government or any other person or organization within such time as may be specified by it[84]
  2. While inquiring into complaints under the Act, the Commission shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, and in particular enjoy the following powers, namely[85];
    1. summoning and enforcing the attendance of witnesses and examining them on oath;
    2. discovery and production of any document;
    3. receiving evidence on affidavits;
    4. requisitioning any public record or copy thereof from any court or office;
    5. issuing commissions for the examination of witnesses or documents;
    6. any other matter which may be prescribed.
  3. The Commission may, while investigating a complaint, make written requests for information, interview people, review documents or visit the premises to determine whether or not any large scale violation of rights of persons with disabilities is happening under this Act
  4. The Commission shall make its determination in case of a complaint not later than 60 days from the filing of the complaint and record the same in a report.

Explanation and Justification

One of the Commission’s key functions in the realm of grievance redressal will be to receive complaints and initiate investigations into violations of disability rights. The powers afforded to the Disability Rights Commission are in consonance with the powers of the National Human Rights Commission and the proposed Equal Opportunity Commission with some minor changes.

S. 12    - Power to take Steps after Completion of Suo Moto Investigation or Inquiry

The Commission may take any of the following steps during or upon the completion of an inquiry or investigation held under S. 10 or S. 11 under this Act, namely –

Issue a declaration on the basis of the report, identifying and detailing the nature of discrimination, and the manner in which rights of persons with disabilities have been collectively violated

Provide a copy of this declaration to the party whose conduct is found to be discriminatory asking for an explanation for such conduct

Endeavour to eliminate any discriminatory practice by informal methods of mediation and conciliation

In case of discrimination by a state agency, approach the responsible state agency and afford it the opportunity to choose the means of compliance with the disability rights in question, rather than the commission or the court itself developing or dictating a solution.

Recommend to the concerned Government or authority at any stage of the inquiry the initiation of proceedings as the Commission may deem fit against the party or parties

Provided that in case the Commission makes a recommendation to the concerned Government, the Government shall either proactively act to prevent discrimination or a report shall be submitted from the office of the Law Officers of the concerned Government detailing the reason for the action not taken.

Explanation and Justification

Having considered the provisions governing the South African Human Rights Commission, the Suhakam - Human Rights Commission of Malaysia, the United Kingdom Equal Opportunity Commission and the Canadian Disability Rights Commission, it is submitted that a multi-pronged approach is desirable. Since the Commission is not a adjudicative body, it is crucial to elevate its recommendations to a level where the Government responds to it. But even before it gets to that stage, it was felt that something similar to structural interdicts in South Africa, could be tried with by engaging with the parties in question.[86]

Therefore, the first step would be that the Commission would issue a declaration on its website identifying and detailing the nature of discrimination, and the manner in which rights of persons with disabilities have been collectively violated and also provide a copy of this declaration to the party whose conduct is found to be discriminatory asking for an explanation for such conduct. Further, it would itself try to eliminate any discriminatory practice by informal methods of mediation and conciliation. Whenever the Commission detects that a state agency has discriminated, it would first approach the responsible state agency and afford it the opportunity to choose the means of compliance with the disability rights in question, rather than the commission or the court itself developing or dictating a solution. However, failing this step would require the Commission to recommend to the concerned Government or authority the initiation of proceedings against the party or parties in violation.

Furthermore, it would be the responsibility of the officer of the respective law officers to provide an explanation for failure to take action on the recommendation of the Commission.

S. 13 - Power to Approach the Court, Intervene in Court Proceedings and Provide Legal Assistance

In cases where it discovers a collective denial of rights to persons with disabilities due to any discriminatory content in a law, policy or practice, or a systemic violation of the provisions of this Act, the Commission shall have the power to approach the Supreme Court or the High Court for directions, orders or writs.[87]

The Commission shall have the power to intervene as amicus curiae in any proceeding involving an allegation of violation of rights of persons with disabilities pending before a competent court with the approval of such court.

The Commission shall act to ensure the provision of legal aid under the Legal Services Authority Act 1987 for a person with disability otherwise eligible for legal aid.

Explanation and Justification

An important power of the Commission is to intervene in legal proceedings that involve the infringement of disability rights. This power amounts to a power to initiate new litigation when the informal methods to eliminate discrimination are unsuccessful. Moreover, it could intervene as amicus curiae (a friend of the court) in court proceedings that raise disability rights issues. The Commission is of course required to take the permission of the concerned court before intervening. This provision also calls for the assistance of the Commission in ensuring that persons with disabilities are able to effectively secure legal aid under the Legal Services Authority Act 1987.

S. 14 – Duty to Facilitate Mediation and Conciliation[88]

The Commission shall keep a record of accessible mediation and conciliation centres and have the duty to ensure that any person with disability willing to resolve disputes through these processes has access to suitable institutions

The Commission shall have the duty to engage with and establish ties with Conciliation and Mediation centres in all regions of the Country, including the International Centre for Alternate Dispute Resolution on issues regarding the rights of persons with disabilities and the provisions of this Act

The Commission shall have the duty to organize and conduct training programs, workshops and seminars for mediators and conciliators on resolving disputes involving persons with disabilities

Explanation and Justification

The Disability Rights Commission may have a mediation and conciliation section with a few mediation and conciliation officers to undertake this duty. Unlike other Commissions which engage in large-scale mediation and conciliation, the Disability Rights Commission role shall primarily act as a facilitator. The Commission will help enforce the realization of rights by providing mediation and conciliation services to the extent that an aggrieved person will be able to directly contact conciliation or mediation officer to discuss his/her concerns and the officers will provide general advice on options available to the aggrieved person and recommend accessible mediation and conciliation centres which are conveniently located.

Crucially, this provision also ensures the capacity building of various conciliators and mediators through training programmes which will be part of the collaborative arrangements between the Commission and mediation and conciliation centres. The fundamental purpose here is to ensure the conciliation and mediation become more disabled friendly methods of resolution of disputes but an added advantage of this branch will be that this will help the Commission in tracking the nature and kinds of disputes that are arising and feed into its investigative work on areas where maximum redressal is required.

S. 15 - Duty to Sensitize and Build Awareness

The Commission shall have the duty to sensitize and raise awareness throughout society, including at the family level, regarding persons with disabilities, and foster respect for the rights and dignity of persons with disabilities as well as the provisions of this Act.[89]

The Commission shall forge partnerships with local disability rights organizations to run a series of periodical training workshops for local disability rights organizations in order to prepare and train them to promote awareness of the capabilities and contributions of persons with disabilities.

The Commission shall assist in the formulation of disability rights education programmes and raise public awareness about disability rights and efforts to combat discrimination.

The Commission shall conduct training programmes and workshops in collaboration with the Press Council and the Press Unions to address members of the print and electronic media and encourage them to portray persons with disabilities in a manner consistent with the purpose of this Act.

Explanation and Justification

This provisions talks in terms of how the Commission would sensitize and raise awareness throughout society, including at the family level, regarding persons with disabilities, and foster respect for the rights and dignity of persons with disabilities. It would do this in partnership with local disability rights organizations and run a series of periodical training workshops for local disability rights organizations to prepare and train them to promote awareness of the capabilities and contributions of persons with disabilities. The Commission would also assist in the formulation of human rights education programmes and raise public awareness about human rights and efforts to combat discrimination. It would also address members of the print and electronic media and encourage them to portray persons with disabilities in a manner consistent with the purpose of the Persons with Disability Act and the UNCRPD.

These activities of the Commission are also vital because they will make the Commission more accessible to the people. Through these sensitization and awareness building exercises, there will be an improvement of public knowledge of the Commission, its physical location and diversity of composition. Just as this provision deals with partnerships with media, the Commission can improve accessibility by various devices, ranging from advertising through radio, TV and brochures.

This provision also incorporates the all important educational function of the Commission as it spread disability rights literacy through through working with the media, releasing publications, conducting seminars, workshops and symposia and the encouragement of disability rights organizations.

S. 16 - Duty to Review Existing and Proposed Legislation, Administrative Directives & Procedures and Schemes[90]

The Commission may suo motu or on request of any person, organization or ministry, undertake a review of any existing or proposed legislation, scheme, administrative directive or any administrative procedure of the Central or State Government which is or is likely to adversely impact the rights of persons with disabilities or violate any provision of this Act.

The Commission shall prepare a report subsequent to the completion of the review and if it finds necessary, submit this report with recommendations to the concerned Government or ministry

Explanation and Justification

Since the Commission is addressing large scale violation, it must address all laws, schemes and orders that are likely to adversely impact the rights of persons with disabilities. In this role, the Commission will function in close contact with the Disability Rights Council and exert pressure on the government to fill the lacunae by necessary amendments.

S. 17 - Reports by the Commission[91]

The Commission shall present a comprehensive annual report to the Parliament on its working along with the audited statement of accounts and also publish the report on its website.

The Commission may provide other periodical reports to Parliament or the Ministry of Social Justice and Empowerment if it deems necessary to address specific issues and areas of relevance to the full and effective realization of rights of persons with disabilities.

The annual and periodic report shall contain detailed analysis of the state of rights of persons with disabilities in different sectors which the Commission has considered and also identify areas where policy changes or governmental action is necessary.

Explanation and Justification

The provision mandating the submission of Annual and Periodic reports shall strengthen the accountability system and in turn strengthen the effectiveness of the Commission. The Commission is also be accountable to the people who it is mandated to protect and therefore, it is required to publish the reports on its website. Accountability to the public can be enhanced through actions such as making sure the annual and special reports are distributed widely in the public sphere. The rules may detail the exact manner in which the Commission shall do this in collaboration with the local disability rights organizations.

Part II – Individual Grievance Redress: Empowering Commissioners for Persons with Disabilities

S. 1 – Chief Commissioner for Persons with Disabilities

The Central Government shall appoint a full-time Chief Commissioner for persons with disabilities for the purposes of this Act.[92]

The Chief Commissioner shall be appointed for a period from amongst persons having expertise and experience in advocacy and research for the rights of persons with disabilities.

The Chief Commissioner shall[93]

Ensure that a commission for persons with disabilities is set up in each district and state in India and appointments are made regularly

Coordinate the work of the State Commission and the District Commission

Monitor the utilization of funds disbursed to the State Commission and District Commission

Explanation and Justification

This provision calls for an appointment of a full-time Chief Commissioner of Disabilities. This office is similar to the Persons with Disabilities Act, 1995 but we propose a change in the role of the Commissioner. The Chief Commissioner would carry-out the all important function of coordinating the work of the State Commission and the District Commission and also monitor the utilization of funds disbursed to the State Commission and District Commission. It is obvious that the creation of 28 State Commissions and over 600 District Commissions will require a great deal of coordination and constant assessment. Moreover, when the CCPD does not have to carry out its quasi-judicial function, there is a possibility of it identifying certain areas which need special attention and focusing on addressing problems with these issues.

S. 2 – State Commission for Persons with Disabilities[94]

The State government for each State shall establish a State Commission for Persons with Disabilities.

The State Commission shall consist of two full-time members including

  • a President who is a retired judge of a High Court
  • a person with disability belonging to a self-advocacy or peer support group or a person having adequate knowledge or experience of, or have shown capacity in dealing with issues of human rights and rights of persons with disabilities.

The appointments under this section shall be made after obtaining recommendations of a Committee comprising of the Chief Justice of the High Court of the respective state, the Chief Commissioner for Persons with Disabilities and a member nominated by the Chairperson of Disability Rights Commission from amongst the ten members.

Provided that in constituting the State Commission, every effort shall be made to give representation to persons with disabilities and women.

S. 3 – District Commission for Persons with Disabilities[95]

  1. The State government for each State shall establish a District Commission for Persons with Disabilities in each district of the State
  2. The District Commission shall consist of two full-time members including
    1. a President who is a retired judge of a District Court
    2. a person with disability belonging to a self-advocacy or peer support group or a person having adequate knowledge or experience of, or have shown capacity in dealing with issues of human rights and rights of persons with disabilities.
  3. The appointments under this section shall be made after obtaining recommendations of a Committee comprising of the Chief Justice of the High Court of the respective state and the 2 members of the State Commission for Persons with Disabilities

Provided that in constituting the District Commission, every effort shall be made to give representation to persons with disabilities and women

Explanation and Justification for Sections 2 and 3

There shall be full-time members in the District and State Commissions. The State Commission shall comprise of a retired judge of a High Court (as President) and another member - a person with disability belonging to a self-advocacy or peer support group or a a person having adequate knowledge or experience of, or have shown capacity in dealing with issues of human rights and rights of persons with disabilities. Similarly, in case of a District Commission, the President will be a retired judge of a District Court. The members of the State Commission will be appointed in consultation with the Chief Commissioner of Disabilities along with the Chief Justice of that State and the Chairperson of the Disability Rights Commission. The members of the District Commission will be appointed in consultation with the 2 members of the State Commission of Disabilities along with the Chief Justice of the High Court of that State. The composition of the Commission is important because by including a person with disability and a person with experience and knowledge, we will ensure that the disability dimension of the case is not ignored and the desire to have adjudicators  with specialized knowledge disability rights is also met.

S. 4 - Conditions of Service of Members

The salaries and allowances payable to, and other terms and conditions of service of the Chief Commissioner as well as the members of the State and District  Commission shall be such as may be prescribed.

Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after her appointment.

S. 5 - Officers and other Staff of the Commission

  • The concerned Government shall make available to the Office of the Chief Commissioner, the State Commission or the District Commissioner Commission as the case may be, such other officers as may be necessary for the effective functioning.
  • Subject to such Rules as may be made by the Government in this behalf, the State and District Commission may appoint such other administrative, technical and scientific staff as it may consider necessary.
  • The salaries, allowances and conditions of service of the officers and other staff shall be such as may be prescribed.

S. 6 – Jurisdiction of the District Commission

The District Commission shall have the jurisdiction to entertain complaints relating to any violation of rights guaranteed to persons with disabilities under this Act.

S. 7 – Procedure in the District Commission[96]

  1. Any aggrieved person may approach the District Commission with a complaint listing specific details so as to provide adequate information to the members. 
  2. On receipt of a complaint, the District Commission shall provide a copy of the complaint to the opposite party mentioned in the complaint direction him/her to respond within a period of thirty days.
  3. The District Commission shall give a reasonable opportunity to both the parties to present their case in person or through a legal counsel.
  4. For the purposes of this section, the District Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure 1908 while trying a suit in respect of the following matters, namely –
    1. summoning and enforcing the attendance of any person and examining him on oath;
    2. requiring the discovery and production of documents;
    3. receiving evidence on affidavits;
    4. subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;
    5. issuing commissions for the examination of witnesses or documents;
    6. reviewing its decisions;
    7. dismissing an application for default or deciding it ex parte;
    8. setting aside any order of dismissal of any application for default or any order passed by it ex parte; and
    9. any other matter which may be prescribed by the Concerned Government.
  5. The Commission shall decide every application made to it as expeditiously as possible after a perusal of documents, affidavits and written representations and after hearing such oral arguments as may be advanced
  6. Every proceeding before the District Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code and the District Commission shall be deemed to be a civil court for the purposes of the Code of Civil Procedure.

Explanation and Justification

This provision allows any individual with a complaint relating to any violation of a right under the Act to approach the district commission. The District Commission is the first point of contact for most individuals. Any aggrieved person will be able to approach it with a complaint and the District Commission shall decide every matter expeditiously after providing reasonable opportunity to be heard to both parties. Every proceeding before the District Commission will be deemed to be a judicial proceeding and it shall have the same powers as are vested in a Civil Court under the CPC in respect of certain matters.

S. 8 – Finding of the District Commission[97]

The Commission shall decide both questions of law and facts that may be raised before it and if it is satisfied that there has been any infringement of any right guaranteed under this Act or a violation of any provision of this Act, it shall issue an order to the opposite party directing one or more of the following things –

  • to remedy the infringement by removing the discriminatory practice or scheme
  • to discontinue any activity that is violating the provisions of this Act
  • to pay such amount as may be awarded by the Commission as compensation to the victim for any loss or injury suffered
  • to provide adequate costs to the parties

Every order made by the District Commission shall be signed by its President and the members conducting the proceedings and published regularly on its website

Subject to the foregoing provisions, the procedure relating to the conduct of the members of the District Commission, its sitting and other matters shall be such as may be prescribed by the State Government. 

Explanation and Justification

The District Commission shall have the power to decide both questions of law and fact and pass an order directing the party to remedy the infringement, discontinue any discriminatory practice, pay compensation and provide costs.

Since the decisions of the District and State Commission will provide insight into the kinds of disputes and feed into the research work of the Disability Rights Commission, the District and State Commissions shall publish their decisions on their website regularly.

S.9 – Appeal[98]

Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.

Explanation and Justification

If any party is aggrieved by the order of the District Commission, it can prefer an appeal to the State Commission under whose jurisdiction the District is. To ensure timely delivery of justice, the appeal shall be made within 30 days of the order.

S. 10 – Procedure in the State Commission

The provisions of Sections 6, 7 and 8 and the rules made there under for the disposal of complaint by the District Commission shall, with such modification as may be necessary, be applicable to the disposal of disputes by the State Commission.

S. 11 - Appeal

Any person aggrieved by an order made by the State Commission may prefer an appeal against such order to the High Court of that State within a period of thirty days from the date of the order.

Explanation and Justification

If any party is aggrieved by the order of the State Commission, it can prefer an appeal to the High Court of the State within 30 days of the order. For reasons already stated, unlike other some bodies in India, there will be no national appeal and instead the Chief Commissioner at the national level will works towards ensuring the effective functioning of and coordinating the functioning of the DCPD and SCPD.

S. 12 – Enforcement of the Orders of the District Commission or the State Commission[99]

Every order made by the District Commission or the State Commission may be enforced by the District Commission or the State Commission as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District and the State Commission to send, in the event of its inability to execute it, such order to the court having jurisdiction over the case.

S. 13 – Penalties[100]

Where a party fails to comply with any order of the District Commission or the State Commission, as the case may be, such party shall be punishable with imprisonment for a term of ____ months or fine of ______ or both.

S. 14 – Bi-Annual Reports

The District Commission shall present two reports annually to the State Commission, the Chief Commissioner and the Disability Rights Commission.

The State Commission shall present two reports annually to the Chief Commissioner and the Disability Rights Commission.

The reports shall contain detailed analysis of the complaints instituted, pending and disposed as well as the nature of complaints, and also identify areas where policy changes or governmental action is necessary to prevent disputes.

Explanation and Justification

In order to ensure accountability and prevent difficulties that have come up with district-level and state-level bodies in India in the past, the DCPD and the SCPD shall prepare bi-annual reports to both the Chief Commissioner for Disabilities and the Disability Rights Commission. The reports shall contain detailed analysis of the complaints instituted, pending and disposed as well as the nature of complaints, and also identify areas where policy changes or governmental action is necessary to prevent disputes. These reports will be an extremely rich resource for the Disability Rights Commission and the Disability Rights Council in their policy interventions.

Conclusion

Drafting a new law for a section of society whose rights have been systemically denied is akin to a revolution. This process is revolutionary because it not only challenges existing theoretical paradigms but also because it dares to test and apply varied legal principles and practices in the context of disability. It is revolutionary because for the first time, a piece of legislation is recognizing the civil-political rights of any group of persons. It is revolutionary because it brings into play different ways of seeing the reality of the lives of persons with disabilities, a different set of values with which to judge existing social arrangements[101] and because it has the potential to change the lives of an important section of our society. However, as we have seen with other progressive and path-breaking legislations, be it on the issue of information or employment guarantee, the mere creation of legal entitlements and guarantee of rights is futile without a practical way in which people can enforce their rights. One of the greatest challenges in the Indian legal system today is the urgent need to close the gap between what the law says and what is implemented. Evidently, success at the level of law-making does not often translate into real success on the ground. The Disability Rights Commission and the Commissions for Persons with Disabilities are being established to bridge this gap.

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  •  Brian Burdekin, Human Rights Commissions in (Kamal Hossain et al. eds.)Human Rights Commissions and Ombudsman Offices: National Experiences Throughout the World 801 (2000).
  •  Vijayashri Sripati, India's National Human Rights Commission: A Shackled Commission?, 18 B.U. Int'l L.J. 1, 4-6 (2000).

Notes

  1. Legal Empowerment refers to the use of international and domestic law, judicial and non-judicial institutions and legal services to improve the quality of life of persons with disabilities and help them in increasing control over their lives to ensure ‘rights-based development’; Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative, Working Paper No. 41, Carnegie Endowment for International Peace, Rule of Law Series (2003).
  2. Ana Palacio, Legal Empowerment of the Poor: Action Agenda, World Bank, p. 47 (Rev. March 2006)
  3. Sally Engle Merry, Creating Human Rights Consciousness and Human Rights Activism, Draft Working Paper, World Bank Legal Forum, Session on Legal Empowerment and Justice for the Poor (2005) in Ibid.
  4. Bryan A. Garner, “Black’s Law Dictionary”, 9th ed., 2009, p. 1560.
  5. Designing and Implementing Grievance Redress Mechanisms: A Guide for Implementors of Transport Projects in Sri Lanka, Asian Development Bank, p. 1 (2010).
  6. Ayesha Dias, International Law and Sources of Access to Justice, in Justice for the Poor: Perspectives on Accelerating Access (Dias & Welch ed. 2009) p. 5.
  7. S. Murlidhar, Law, Poverty and Legal Aid: Access to Criminal Justice (New Delhi: Lexis Nexis Butterworths), p. 1 (2004); See also, Pratiksha Baxi, Access to Justice and Rule-of- [Good] Law: The Cunning of Judicial Reform in India, Working Paper Commissioned by the Institute of Human Development, New Delhi on behalf of the UN Commission on the Legal Empowerment of the Poor, May 2007.
  8. See Access to Justice: Practical Note, United Nations Development Program, p. 6 (2004) available at http://www.undp.org/governance/docs/Justice_PN_English.pdf.
  9. Article 13 requires States Parties “to ensure effective access to justice for persons with disabilities on an equal basis with others,” through the provision of accommodations and the facilitation of “their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.”; United Nations Convention on the Rights of Persons with Disabilities, A/RES 61/106 of 13 December 2006.
  10. Guernsey, Nicoli & Ninio, Convention on the Rights of Persons with Disabilities: Its Implementation and Relevance for the World Bank, Social Protection Discussion Paper No. 0712, June 2007.
  11. Article 33 of the Convention requires State parties to establish specific mechanisms to strengthen implementation and monitoring of the rights of persons with disabilities at the national level.
  12. Amita Dhanda, Consensus Paper on Substantive Content of New Law on Disability Rights, October 10, 2010, Centre for Disability Studies, p. 2.
  13. Ibid at p. 17.
  14. Ibid at p. 18.
  15. Harlow & Rawlings, Law and Administration, Cambridge University Press (1997), p. 391.
  16. See “Equal Opportunity Commission: What, Why and How?”, Report by the Expert Group to Examine and Determine the Structure and Functions of an Equal Opportunity Commission set up by the Ministry of Minority Affairs, Government of India, February 2008, p. 50.
  17. See, Equality Scheme 2009-2012, UK Equality and Human Rights Commission for a discussion around the broad ambit of functions and activities carried out by the Commission.
  18. See Linda C. Reif, Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection, 13 Harvard Human Rights Journal 1 (2000).
  19. Promoting the Safety and Security of Disabled People, Equality and Human Rights Commission, available at www.equalityhumanrights.com/en/publicationsandresources/Pages/disabilitytargetedviolence.aspx.
  20. See Strategic plan of the Equality and Human Rights Commission 2009–2012, laid before Parliament pursuant to Part 1 Section 4(4) of the Equality Act 2006.
  21. I. M. Young, Five Faces of Oppression, in Justice and the Politics of Difference, 188 (1990). During her discussion on ‘Marginalization’ and ‘Powerlessness’, Young details on how it is imperative for people to decide and know what is good for them. It is important that persons with disabilities are provided an opportunity to regularly participate in making decisions that affect the conditions of their lives so that they don’t lack power. Inability to participate in the process may subject to arbitrary treatment by the policies and the people associated with them.
  22. See Section 4, Equality Act, United Kingdom.
  23. Principles Relating to the Status of National Institutions (The Paris Principles), G.A. Res. 48/134, PP 2-3, U.N. Doc. A/RES/48/134 (Dec. 20, 1993).
  24. Office of the High Commissioner for Human Rights, “From Exclusion to Equality”, Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (2007).
  25. Additionally, the National Commission for Minorities, the National Commission for Backward Classes, the National Commission for Women, the National Commission for Protection of Child Rights also carry out the task of grievance redress by undertaking inquiry into complaints in some form or the other.
  26. In their report, several members made the following observation about the envisaged role of the Commission: “It must also be stressed that the Commission must confine its activities to correcting abuse, not promoting equality with mathematical certainty.”; H.R. Rep. No. 88-914, at 2488 (1963), reprinted in 1964 U.S.C.C.A.N. 2355, 2391.
  27. Accordingly, the agency was authorized to process individual complaints of unlawful discrimination to attempt conciliation between employers and employees. In addition, the agency's power was extremely limited; Julie Chi-hye Suk, Antidiscrimination Law in the Administrative State, University of Illinois Law Review 405 (2006)
  28. Jean R. Sternlight, In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis, 78 Tulane Law Review 1401 (2004).
  29. U.S. Equal Employment Opportunity Commission, The Story of the United States Equal Employment Opportunity Commission: Ensuring the Promise of Opportunity for 35 Years, 1965-2000, p. 15 (2000).
  30. Brian Burdekin, Human Rights Commissions in (Kamal Hossain et al. eds.)Human Rights Commissions and Ombudsman Offices: National Experiences Throughout the World 801 (2000).
  31. See generally “Equal Opportunity Commission: What, Why and How?”, Report by the Expert Group to Examine and Determine the Structure and Functions of an Equal Opportunity Commission set up by the Ministry of Minority Affairs, Government of India, February 2008, p. 45.
  32. It is argued that NHRC is, in essence, a purely recommendatory body that has in its arsenal only the powers to recommend; Vijayashri Sripati, India's National Human Rights Commission: A Shackled Commission?, 18 B.U. Int'l L.J. 1, 4-6 (2000).
  33. The Australian process for dealing with discrimination complaints is founded on the idea that an informal process, specifically conciliation, is usually the best method for resolving discrimination claims; Parliament created this commission through the enactment of the Human Rights and Equal Opportunity Commission Act, 1986, amended by Human Rights Legislation Amendment Act, 1999. For a general description of this agency see Human Rights and Equal Opportunity Commission, About the Commission, at http://www.hreoc.gov.au/
  34. The South African Human Rights Commission (http://www.sahrc.org.za/home/index.php?ipkContentID=22) and the Indian National Human Rights Commission are also empowered to approach a Court of law or to act as amicus curiae.
  35. For example, Commission could request the Chief Justices of the various High Courts in India to appoint a 5 member panel in the State comprising of lawyers and researchers working on disability law and policy to document the violation of rights and present periodical reports.
  36. Acting under S. 4(1)(a), the Malaysian Human Rights Commission has constituted a Education and Promotion Working Group which is playing a key role in promoting respect for and protection of human rights through educational activities and in assessing needs and formulating strategies for furtherance of human rights education; http://www.suhakam.org.my/wg_committee.
  37. See generally, Marc Galanter & Jayanth K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in India, 55 Hastings Law Journal 789-834 (2004).
  38. “Barriers faced by Persons with Disabilities in Accessing Justice”, Report prepared by India Centre for Human Rights and Law, March 2007. (file on record with author)
  39. Ibid.
  40. Absence of ramps, narrow entrances, difficulties with entry permission, lack of parking facilities for persons with disabilities, inaccessible elevators, unsuitable toilets, absence on hand rails on stairways, slippery building material such as tiles and the inaccessibility of facilities such as water fountains, telephones and canteens in courts are some of the reasons cited in the Report that prevent access for persons with disabilities.
  41. Supra note 17.
  42. Sally Engle Merry, Creating Human Rights Consciousness and Human Rights Activism, Draft Working Paper, World Bank Legal Forum, Session on Legal Empowerment and Justice for the Poor (2005) in supra note 2.
  43. Arvind Datar, The Tribunalisation of Justice in India, Acta Juridica 288 (2006).
  44. Subsequent to the L. Chandra Kumar Case (T 1997 (3) SC 58), Tribunals function as supplemental bodies and their jurisdiction is subject to the review of the High Court under Article 226.
  45. Armin Rosencranz & Geetanjali Sahu, National Green Tribunal Bill, 2009: Proposals for Improvement, Economic and Political Weekly, November 28, 2009, p. 8.
  46. Peter Cane, An Introduction to Administrative Law, 1st ed. (1986), Clarendon Press, Oxford, p.282.
  47. Section 20, Consumer Protection Act, 1986.
  48. For a discussion on role of courts in the context of the American Disability Act, see Stanley S. Herr, The Americans with Disabilities Act: Reforming Disability Discrimination Laws: A Comparative Perspective, 35 University of Michigan Journal of Law Reform 305 (2002).
  49. Ibid.
  50. Ibid.
  51. Section 58, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
  52. See the official website of the Office of the Chief Commissioner for Persons with Disabilities, http://www.ccdisabilities.nic.in/page.php
  53. This general provision empowering the Central Government to establish the Commission is similar to S. 3(1) of the Protection of Human Rights Act, 1993; Cl. 4 (i) of the Equal Opportunity Commission Bill, 2008; S. 3 (1) of the Commission for Protection for Child Rights Act, 2005; S. 3(1) National Commission for Minorities Act and S. 3 of the National Commission for Women Act, 1990.
  54. The membership of different Commissions in India varies and includes both full-time and part-time members. For instance, Cl. 4 of the The Equal Opportunity Commission Bill, 2008 talks in terms of a Chairperson, two full-time members and not more than four part-time members. However, in light of the broad array of functions that are being carried out by the Disability Rights Commission and also to ensure broad and pluralist representation, it is important to have ten members in addition to the Chairperson.
  55. See Section 21, The Protection of Human Rights Act, 1993.
  56. See Chapter III, The Equal Opportunity Commission Bill, 2008.
  57. This general provision deals with the manner of appointment of the Chairperson and members and is similar to S. 4(1) of the Protection of Human Rights Act, 1993; Cl. 5 (i) of the Equal Opportunity Commission Bill, 2008.
  58. Section 6 (1) of the Protection of Human Rights Act, 1993 and Cl. 7 (i) of the Equal Opportunity Commission Bill, 2008 provide for a term of five years. However, it is suggested that the Disability Rights Commission have a term period of four years to enable each group to work on two plans of action.
  59. The provisions regarding removal are similar to S. 5(3) of the Protection of Human Rights Act, 1993; Cl. 6 (i) of the Equal Opportunity Commission Bill, 2008; S. 4 (iii) National Commission for Minorities Act and S. 4 (3) of the National Commission for Women Act, 1990. Importantly, the proposed version and the Equal Opportunity Commission Bill do not refer to unsoundness of mind as a disqualification while all others do.
  60. See Cl. 6 (ii), Equal Opportunity Commission Bill, 2008.
  61. While the Protection of Human Rights Act, 1993 does not contain any provision regarding time-limit for filling vacancies, Cl. 7 (iii) of the Equal Opportunity Commission Bill, 2008 provides a period of six months. Owing to the relatively shorter period of tenure, it is suggested that the vacancies be filled within a period of three months.
  62. This provision is inspired by S. 4 (1) of the South African Human Rights Commission Act, 1994. Legislations governing the National Human Rights Commission, the Equal Opportunity Commission, the National Commission for Minorities and the National Commission for Women do not contain such a provision.
  63. This provision is inspired by the Human Rights Commission of Malaysia (Suhakam). While there is no explicit provision in the legislation, the Suhakam constitutes working group Legislations governing the National Human Rights Commission, the Equal Opportunity Commission, the National Commission for Minorities and the National Commission for Women do not contain such a provision.
  64. See S. 8 of the Protection of Human Rights Act, 1993; Cl. 9 of the Equal Opportunity Commission Bill, 2008; S. 6 of the National Commission for Minorities Act; S. 5 of the Commission for Protection for Child Rights Act, 2005 and S. 6 of the National Commission for Women Act, 1990.
  65. See S. 11 of the Protection of Human Rights Act, 1993; Cl. 12 of the Equal Opportunity Commission Bill, 2008.
  66. See S. 12 (a) of the Protection of Human Rights Act, 1993.
  67. See S. 7(1)(b) of the South African Human Rights Commission Act, 1994.
  68. See S. 7(1)(e) of the South African Human Rights Commission Act, 1994.
  69. See S. 11 (1) (f) of the Australian Human Rights Commission Act, 1986.
  70. See S. 7(1)(a) of the South African Human Rights Commission Act, 1994.
  71. See S. 4 (1) of the Human Rights Commission of Malaysia Act, 1999.
  72. See Cl. 23 (b)(ix) of the Equal Opportunity Commission Bill, 2008.
  73. See Cl. 23 (b) (xvi) of the Equal Opportunity Commission Bill, 2008.
  74. See S. 12 (j) of the Protection of Human Rights Act, 1993; Cl. 23 (b)(xviii) of the Equal Opportunity Commission Bill, 2008.
  75. S. 4(1) (a) of the UK Equality Act, 2006 calls for the creation of a strategic plan; see also Anthony Lester & Lydia Clapinska, An Equality and Human Rights Commission Worthy of the Name, 32 (1) Journal of Law & Society 169 (2005).
  76. See S. 4 (1)(b) of the UK Equality Act, 2006.
  77. See S. 5 of the UK Equality Act, 2006.
  78. S. 4 (2) of the UK Equality Act, 2006 refers to a review at least once during the period of three years beginning with its completion.
  79. Some aspects of this provision are inspired by the Race Relations Board of UK. The RRB was authorized to investigate matters if it had reason to suspect unlawful discrimination, regardless of whether it received an individual complaint. The Board was entrusted to attempt conciliation, in conjunction with local conciliation committees, and if conciliation failed, the Board had the exclusive right to bring legal proceedings on behalf of the victim.
  80. See Human Rights Inquiry, 2009, Report of the UK Equality and Human Rights Commission.
  81. See “Our Strategic Plan”, 2009-2012, UK Equality and Human Rights Commission, providing details and samples of the national survey conducted by the Commission.
  82. See Cl. 25 (i) of the Equal Opportunity Commission Bill, 2008.
  83. See Cl. 25 (ii) of the Equal Opportunity Commission Bill, 2008.
  84. See S. 14 of the Human Rights Commission of Malaysia Act, 1999; Cl. 27 of the Equal Opportunity Commission Bill, 2008.
  85. See S. 13(1) of the Protection of Human Rights Act, 1993; Cl. 24 (i) of the Equal Opportunity Commission Bill, 2008; S. 14 of the Commission for Protection for Child Rights Act, 2005; S. 9 (I) (iv) National Commission for Minorities Act and S. 10(4) of the National Commission for Women Act, 1990.
  86. [86] See Mitra Ebadolahi, Using Structural Interdicts and the South African Human Rights Commission to Achieve Judicial Enforcement of Economic and Social Rights in South Africa, 83 N.Y.U. L. Rev. 1565 (2008).
  87. See S. 7 (1) (e) of the South African Human Rights Commission Act, 1994; S. 12 (b) of the Protection of Human Rights Act, 1993 (India).
  88. To appreciate the contrast between the provisions on mediation and conciliation, see  S. 46B of the Australian Human Rights Commission Act, 1986; S. 8 of the South African Human Rights Commission Act, 1994; Cl. 32 (vi) of the Equal Opportunity Commission Bill, 2008; S. 27 of the UK Equality Act, 2006; S. 48.3 (2) (b) of the Canadian Human Rights Act, 1985.
  89. Article 8 (1), United Nations Convention on the Rights of Persons with Disabilities, A/RES 61/106 of 13 December 2006.
  90. This provision is inspired by Cl. 35 of the Equal Opportunity Commission Bill, 2008.
  91. See S. 32 of the UK Equality Act, 2006; S. 20 of the Protection of Human Rights Act, 1993; S. 16 of the Commission for Protection for Child Rights Act, 2005; Ss. 12 and 13 National Commission for Minorities Act and Ss. 13 and 14 of the National Commission for Women Act, 1990.
  92. This provision is similar to S. 57 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. However, the 1995 Act employs non-binding language and this has been rectified in the proposed provision. Moreover, the words ‘full time’ have been inserted in the proposed provision.
  93. This provision is similar to S. 57 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. However, as discussed in Part III of this paper, the scope of functions has been narrowed.
  94. See S. 16 of the Consumer Protection Act, 1986.
  95. See S. 10 of the Consumer Protection Act, 1986.
  96. See S. 13(4) of the Consumer Protection Act, 1986; S. 16 of the National Tax Tribunal Act, 2005; Ss. 14 and 15 of the Green Tribunal Act, 2010 and S. 14 of the Armed Forces Tribunal Act, 2008.
  97. See S. 14 of the Consumer Protection Act, 1986.
  98. See S. 15 of the Consumer Protection Act, 1986; S. 24 of the National Tax Tribunal Act, 2005; S. 22 of the Green Tribunal Act, 2010 and S. 30 of the Armed Forces Tribunal Act, 2008.
  99. See S. 25 of the Consumer Protection Act, 1986.
  100. See S. 26 of the National Green Tribunal Act, 2010.
  101. Gerard Quinn, Resisting the ‘Temptation of Elegance’: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behavious? in Oddný Mjöll Arnardóttir and Gerard Quinn (eds.), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (2009), Martinus Nijhoff.

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