Lost in Recommendations: Ensuring Accountability in Disability Rights Enforcement

In September 2024, the Delhi High Court ruled that the orders issued by the Chief Commissioner for Persons with Disabilities are not legally binding in nature, but merely recommendatory.¹ This decision came in a case where the Chief Commissioner’s interim order, which stayed the transfer of an employee with a disability, was deemed invalid. The Court explained that the Rights of Persons with Disabilities Act, 2016² (RPWDA), which establishes the Chief Commissioner’s authority, does not empower the Chief Commissioner to issue binding or adjudicatory orders. While this interpretation may not be inconsistent with the RPWDA, it raises significant concerns about the system’s effectiveness. The question remains how can the complaints of persons with disabilities lead to meaningful resolutions if the Commissioner’s orders lack binding authority?

Role of Commissioners for Persons with Disabilities

Before addressing this concern, it is crucial to understand the role of the Commissioners and their significance in advancing disability rights. The RPWDA, as the primary legislation safeguarding the rights of persons with disabilities in India, offers a bouquet of rights across various spheres, including equal treatment, non-discrimination, inclusive education, accessibility, employment, healthcare, community life, among others. While the legislation promises extensive protections, these rights hold real value only when they are effectively implemented and upheld. To ensure this, the RPWDA, under Sections 75 and 80³, establishes a framework with Chief Commissioners for Persons with Disabilities at the Centre and State Commissioners for Persons with Disabilities in States, to oversee the implementation of RPWDA and addressing complaints of rights violations.

Filing complaints with the Commissioners is a straightforward process that can be initiated by persons with disabilities or by others on their behalf. After hearing both the complainant and respondent, if the complaint is found to have merit, the Commissioner issues an order in the form of recommendations to the respondent, urging them to take corrective action to safeguard the rights that have been infringed upon.

Over the years, Commissioners have issued several significant orders that have resulted in tangible changes at the ground level. A perusal of the compendium of notable orders of the Commissioners published by the Department of Empowerment of Persons with Disabilities highlights how these orders have upheld the rights of persons with disabilities across various areas, including equal employment opportunities, inclusive education, discrimination, accessibility rights, healthcare, and banking and insurance, among others.⁴ For instance, in 2022, the Delhi State Commissioner addressed multiple complaints regarding children with disabilities who were denied school admissions; following the Commissioner’s intervention, these children were granted admission.⁵ More recently, the Reserve Bank of India (RBI) issued a directive to payment system operators to enhance accessibility in digital payments for persons with disabilities⁶, a move that came just four months after the Chief Commissioner made a similar recommendation to the RBI.⁷

Inadequate and ambiguous compliance mechanisms

While there is no denying that the orders issued by the Commissioners have been instrumental in safeguarding the rights of persons with disabilities, challenges arise when these orders are not complied with. The RPWDA provides a limited compliance mechanism under Sections 76 and 81⁸, which require the respondent receiving the recommendation to inform the Commissioner within three months about the action taken or provide reasons for non-compliance. However, these provisions do not provide sufficient clarity on whether the Commissioner’s orders are binding or not. The absence of such explicit provisions in the law leaves room for the inference that the respondent may choose to simply reject the recommendation, thereby dismissing the rights of persons with disabilities with impunity.

On this subject, there are two pertinent rulings by the Delhi High Court: In 2005, the Court acknowledged that while the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995⁹ (now replaced by the RPWDA) does not specifically state that the Chief Commissioner’s orders are binding, it offers enough indication that the Chief Commissioner’s role is not purely recommendatory.¹⁰ The Court further added that in the absence of any contrary provision, it can be inferred that the Chief Commissioner has adjudicatory powers. However, in the aforementioned 2024 ruling¹¹, the same Court noted that the Chief Commissioner’s role is primarily investigatory and recommendatory, focused on ensuring compliance with the rights and protections under the law, rather than adjudication.

While the Court in the 2024 ruling¹² arrived at this conclusion based on several judicial precedents laid down by the Supreme Court on the issue, it failed to clarify how compliance with the orders of the Commissioners will be “ensured” when no effective legal mechanism exists for enforcement. The import of this ruling is that for any person with disability seeking to enforce their rights under the RPWDA, the initial step is to approach the Commissioner for a recommendation against the respondent. However, if the respondent rejects the recommendation, the aggrieved person must ultimately turn to the courts, filing a writ petition to enforce their rights. Summarily, the long-drawn process of filing a complaint with the Commissioner would be an exercise in vain, wasting the complainant’s time, resources and efforts.

Potential pathways for enhancing compliance

In light of the concerns stemming from the 2024 Delhi High Court ruling¹³, an appeal has been filed in the same Court to delineate the scope of powers of the Chief Commissioner. Parallelly, the Supreme Court has also admitted a public interest litigation regarding the non-compliance and neglect of recommendations made by the Commissioners in cases involving violations of the RPWDA.¹⁴ This presents a crucial opportunity for the courts to define the scope of the Commissioner’s authority and clarify the nature of their orders.

Further, to ensure that after filing complaints, persons with disabilities are not left stranded due to inaction from both Commissioners and respondents, the courts could also urge the Central Government to establish clearer provisions for enforcing Commissioner’s orders. This could include an effective legal mechanism that ensures accountability for all parties involved until the issue is fully resolved.

Such mechanism could include expanding the powers of Commissioners to hold off disposal of cases until they receive confirmation of compliance or valid reasons for non-compliance, ensuring that respondents remain accountable under the Commissioner’s inquiry until they justify their actions. In cases of non-responsiveness, the Commissioner’s office could take a more active role by issuing regular reminders, conducting site visits, and sending official letters to follow up. If the Commissioner remains unsatisfied with the response, they could then guide the complainant to approach the relevant High Court through a writ petition for enforcement, leading to the final adjudication of the matter. A precedent for this can be found in National Federation of the Blind v. State (NCT of Delhi), where the Delhi High Court upheld the Delhi State Commissioner’s order and declared that non-compliance would be treated as contempt of court.¹⁵

Such measures, which may require broadening of Commissioner’s power through an amendment in the RPWDA, could significantly improve compliance with their orders and ensure that the Commissioners function as a facilitator, rather than an isolated intermediary, in the process of securing justice through the courts. It is hoped the courts will take proactive steps this time to put an end to the longstanding issue of non-compliance with Commissioner’s orders, paving the way for persons with disabilities to get substantive resolutions when their rights are violated.