How Disability Commissioners protect entitlements

June 6, 2024.

The Central and State Disabilities Commissioners are a first line of relief for people with disabilities to realize their rights and entitlements under the 2016 Disabilities Act. But some government departments and agencies regard the directions passed by the Commissioners as mere recommendations that they need not comply with.  In a recent case argued by the Disability Law Initiative, the Supreme Court and the Orissa High Court did not agree with this view, and directed the Odisha Government to follow the order of the State Disabilities Commissioner to appoint a person with disability to the post of teaching assistant.

This case and another landmark Supreme Court judgment in Geetaben Ratilal Patel’s case highlight the role of the Disabilities Commissioners in enforcing the rights of people with disabilities in India.

The Odisha case

In the Odisha case, the Disabilities Commissioner took the State Government to task for not making serious efforts to fulfil the reservation for people with disabilities in a large number of teaching posts under the government. During the proceedings, the Disabilities Commissioner noted that the government had conceded to this assessment and had agreed to appoint the complainant, a person with orthopaedic disability, as a teaching assistant. Shockingly, the Odisha Government changed their stance shortly thereafter and refused to comply with the Commissioner’s order.

On a petition by the complainant, the Odisha High Court noted the validity of the Disabilities Commissioner’s order. Refusing the request of the Odisha Government to consider the matter afresh, the High Court directed it to comply with the Commissioner’s order. However, rather than doing so, the State Government decided to appeal to the Supreme Court, taking the ground that the Disability Commissioner did not have the power to direct the appointment of persons with disabilities to government posts. The Disability Law Initiative, appearing for the complainant, argued that the Odisha Government had conceded to the appointment of the complainant before the Disabilities Commissioner. On 18th March 2024, the Supreme Court found no merit in the government’s appeal and dismissed the same, effectively affirming the Disability Commissioner’s directions.

The Geetaben Ratilal Patel case

The Odisha case recalls an earlier judgment of the Supreme Court in the case of Geetaben Ratilal Patel (see case reference below). In addressing the question whether the Disabilities Commissioner had the power to direct reinstatement of a disabled school teacher, the apex court said:

“…the power of the Commissioner to look into the complaints with respect to the matters relating to deprivation of rights as provided under Section 62 of the Act is not an empty formality and the Commissioner is required to apply his mind on the question raised by the Complainant and find out the truth behind the complaint….If it comes to the notice of the Commissioner that a person with disability has been deprived of his rights or that the authorities have flouted any law, rule, guideline, instruction, etc. issued by the appropriate Government or local authorities, the Commissioner is required to take up the matter with the appropriate authority to ensure restoration of rights of such disabled person and / or to implement the law, rule, guideline, instruction if not followed…”

In conclusion:

 

  • The Disability Commissioners are an important first recourse for persons with disabilities who have been denied any of their rights and entitlements under the Rights of Persons with Disabilities Act, 2016
  • A complaint may be made by any disabled person herself or by any person on her behalf or by any person in the interest of persons with disabilities. The Commissioner must inquire into the matter, hear the parties concerned and decide the complaint.
  • The Disabilities Commissioner has the power to pass orders or directions to the competent authorities to ensure restoration of rights of such person with disability.
  • Under Section 76 of the 2016 Disabilities Act, the competent authority must comply with the orders of the Disabilities Commissioner within 3 months, or else give reasons in writing for their non-compliance. In the latter case, such reasons will be subject to judicial review by the Courts.

 

Case References:

Geetaben Ratilal Patel vs. District Primary Education Officer, (2013) 7 SCC 182