Note on the Authorities under the Working Draft of Persons with Disabilities Act, 2011 (9th February 2011)
This Note is on the Working Draft of Persons with Disabilities Act, 2011 (Hereinafter "The PWD Act, 2011") which was released on 9th February, 2011[1] to specifically review the authorities established under the PWD Act, 2011, the powers and functions assigned to the authorities and the effect of the establishment of these authorities.
- The Disability Rights Authority
Vague provisions
The main functions of the DRA are to formulate rules, regulations, guidelines, schemes and other activities. Under section 29 (I), the DRA also has the power to monitor enforcment of the Act and to protect the rights of persons with disabilities and to suo moto address violations of rights of perosns with disabilities. In this regard, the provisions of the Act are vague. There are no provisions to indicate what penalties the DRA may impose in the event of any violation of the provisions of the PWD Act 2011. Wide powers are given to the DRA with regard to promotion, protection, monitoring and even enforcement of rights under the Act. However it is not clear as to how exactly these functions, especially the monitoring and enforcement of rights should be performed.
Powers of review and advice
Under Section 29J, the DRA has the power to review and advise the government to take measures with regard to laws that discriminate against persons with disability. This power will affect the functioning of the authorities under the other disability legislations such as the Mental Health Act,1987 and the National Trusts Act, 1999 as these legislations will be considered to be discriminatory on the issue of legal capacity. Therefore these other disability legislations need to be amended before the DRA can act on its review and advice powers.
Further, in many of the provisions of the Act, there is a mention of a 'designated authority' to perform certain functions without specifying what the designated authority is or who designates the authority. It is unclear as to whether the 'designated authority' refers to a new authority to be established under the Act or it refers to the DRA.
- The Disability Courts
Multiplicity of Fora for grievance redressal
There is no clarity on the intended structure of the courts at different levels. The word “Court” is not defined anywhere under the Act, which is a great lacuna. There are several different for a provided for grievance redressal under the Act – the DRA, the Court of the National Disability Commissioner, the State Disability Courts and the Grievance Redressal Officer in each establishment. It is not clear as to whether these authorities under the Act have concurrent power or whether a person has to approach one authority and seek remedy before going to another. Over and above these courts and fora, the regular civil courts, family courts, High Courts would also have jurisdiction. It is not clear as to whether the jurisdiction of all other courts is ousted by the Act in setting up the special State Disability Courts and the Court of the National Disability Commissioner.
Section 6(7) and (8) empower “a court or the disability court” to make suitable orders on finding the occurrence of discrimination. These Sections merely mention a ‘court’ without specifying which court is referred to as there is no definition of ‘court’ under the Act. There is also no provision under the Act which allows a person to approach any other ordinary court for reliefs under the Act. Therefore it is not clear as to what this Section refers to when it uses the word ‘court’.
- The Court of the National Disability Commissioner
Under Section 29S (2), the Act allows a person to directly approach the National Disability Commissioner only if the person is aggrieved of “discrimination” under the Act and not for other cases of violation. On the other hand, under section 29S (1) (c ) the Court of the National Disability Commissioner has the power to suo moto address all infringment of rights. There is a great contradiction therefore in the jurisdiction of the Court of the National Disability Commissioner.
Further, although there is an entire part of the Act which is dedicated to the imposition of penalties and sanctions, there are no provisions for the National Disability Commissioner to impose any penalties and sanctions.
The National Disability Commissioner acts as the appellate authority on the orders of the DRA. But there is no provision to appeal from the orders of the State Disability Court.
- The State Disability Courts
- The State Disability Courts have a wider jurisdiction that the National Disability Commissioner in that a person can approach the State Disability Courts complaining of violation of any rights under the Act.
- Even in case of the State Disability Court there is no specific provision that allows the court to impose penalties and sanctions detailed under the Act.
Conclusion
The PWD Act, 2011 has made some changes from its earlier draft in December 2010. With regard to the authorities established under the Act, there are many inconsistencies which need to be resolved before the Act can come into force. The powers and the functions of all the authorities need to be clearly demarcated. Further, the empowering provisions should be linked to the provisions which prescribe the procedure through which the powers can be exercised. Provisions imposing penalties and sanctions should be linked to the authorities which have the power to impose the same. There are several authorities which all have power to look into violations of the Act, which can confuse a person seeking remedies under the Act. Unless these issues are addressed, the PWD, Act 2011 would cause major practical problems at the stage of implementing the rights recognised under the Act.
