‘This dismal functioning of the office of the State Commissioners is largely due to the lax attitude on the part of the State governments to invigorate the statutory office in discharging its functions in accordance with the law’
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The data from the 2011 national Census of India indicate that persons with disabilities constitute 2.21 % of the total population. This is a grossly underestimated figure. According to the 2019 Brief Disability Model Survey conducted by the World Health Organization across India, Tajikistan and the Lao People’s Democratic Republic, the prevalence of severe disability among Indian adults is 16%. India ratified the United Nations Convention on the Rights of Persons with Disabilities on October 1, 2007 and one of the immediate measures expected out of the state parties to the convention is to ensure alignment of the national disability legislations in line with the principles of the convention. Accordingly, Parliament passed the Rights of Persons with Disabilities Act 2016 (RPWD Act) that came into force on April 19, 2017 to replace the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which fell short of promoting a social and a human rights model of disability rights.
The role of the State Commissioner
One of the unique points of the RPWD Act in comparison to many disability legislations of the developing countries is the provision for the constitution of the office of the State Commissioners for Disabilities at the State level with a combination of review, monitoring, and quasi-judicial functions to ensure effective implementation of the disability law. According to Section 82 of the RPWD Act, the State Commissioners, for the purpose of discharging their functions under the Act, shall have the same powers of a civil court under the Civil Procedure Code 1908 while trying a suit, and every proceeding before the State Commissioner shall be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860).
Despite the legislation providing far-reaching quasi-judicial powers to the State Commissioners in safeguarding the rights and fundamental freedoms of persons with disabilities, the State Commissioners in many States have fallen short of the expectations of citizens with disabilities. This dismal functioning of the office of the State Commissioners is largely due to the lax attitude on the part of the State governments to invigorate the statutory office in discharging its functions in accordance with the law. This reality has been aptly highlighted in the writ petition WPC 29329/2021, Seema Girija Lal vs. Union of India, in which the delay in appointment of the state Commissioners has also been highlighted.
Among various reasons for the failure to fulfil the statutory role by the State Commissioners is the manner in which the commissioners are appointed. The RPWD Rules provide an opportunity for persons with substantial experience in law, human rights, education, social work and rehabilitation and with a non-governmental organisation background to be appointed to the position of State Commissioner. In reality, a majority of the commissioners, either independent or holding additional charge, are civil servants from the nodal ministry. According to the latest report (2021-22) of the Chief Commissioner for Persons with Disabilities, only eight States have appointed commissioners who are not part of the mainstream civil service. Having civil servants from the nodal ministry is in conflict with the purpose of having an impartial and independent office that can exercise oversight over the executive and hold them accountable for not implementing the provisions of the disability law.
Some of the progressive States in terms of disability inclusion have appointed representatives of civil society organisations as State Commissioners and the State governments should consider appointing qualified women with disabilities as commissioners as they will be in a better position to address intersectional forms of discrimination that women and girls with disabilities in India currently experience.
The State Commissioners have a substantive role including powers to intervene suo motu to identify and inquire about any specific policy, provision, programme and laws that contravene the provisions of the RPWD Act and recommend appropriate corrective measures.
There are many contraventions of the RPWD Act that are highlighted by aggrieved persons with disabilities and by certain proactive organisations of persons with disabilities (OPDs) and the State Commissioners have not been able to intervene suo motu to address discriminatory policies and practices which has led to an erosion of faith in the statutory offices created under the disability law to uphold the rights of citizens with disabilities. The State Commissioners should interact consistently with persons with disabilities and their representative organisations to understand which are those policies, guidelines, executive orders that contravene the provisions of the law and initiate necessary remedial action.
The example of Karnataka
It is vital for State governments and the office of the Chief Commissioner for Disabilities to build the capacity of the State Commissioners in performing their quasi-judicial role and in functioning as a civil court. As done by the State Commissioner’s office in Karnataka, collaborating with law schools and legal experts in strengthening their respective capacities could be a viable option. While some States such as Karnataka and Delhi have been able to infuse confidence among persons with disabilities to register complaints with regard to a deprivation of their rights, it is equally important for State Commissioners to look into complaints and dispose of them expeditiously. The websites of the office of the State Commissioners should — on the dashboard — indicate the number of cases received, disposed of and those pending for action along with other vital information such as annual reports and special reports submitted to the government on implementation of the law by the government with concrete recommendations.
Mobile adalats (mobile courts), as practised years ago by the Karnataka Commissioner’s office, could be a good practice for other States to emulate in reaching out to persons with disabilities in remote areas and to look into a deprivation of their rights. Adalats were organised in the State with prior notice to persons with disabilities through the nodal disability office in the districts for aggrieved individuals or institutions to get their grievance redress.
Often, these grievances would be resolved on the spot for persons with disabilities and their families. Designating District Magistrates as Deputy Commissioners for persons with disabilities — as done in the case of Karnataka — is a promising way to make local governance disability inclusive.
The RPWD Act enables State Commissioners to monitor the implementation of various pieces of legislation, programmes and schemes that impact persons with disabilities. To maximise the effectiveness of this critical role, the District Disability Management Review (DDMR) undertaken by the Karnataka State Commissioner’s office could be one of the preferred practices for State Commissioners. The DDMR has become an inclusive governance tool for the State Commissioner in Karnataka to have sight of how development and welfare programmes and policies have been implemented by the relevant departments at the district level, and to what extent the quotas earmarked for persons with disabilities have been fulfilled.
Research as a function
One of the key functions of the State Commissioners is to undertake and promote research in the field of disability rights. This opens up opportunities for the State Commissioners to collaborate with United Nations entities which have a mandate to promote disability inclusion on the basis of the UN Disability Inclusion Strategy in undertaking research in areas such as disability inclusive social protection, disability inclusive care economy and the impact of climate change on persons with disabilities. The findings could pave the way for more inclusive policies and in advancing the rights of persons with disabilities in India.
Pradeep Kumar Bagival was Disability Inclusion Adviser to the national governments, the United Nations and International Non-Governmental Organisations (INGOs) and former Assistant Commissioner for Disabilities, Persons with Disabilities Act-1995, Karnataka
Published – December 03, 2024 12:16 am IST
