As the entire world commemorated the International Day of Persons with Disabilities (IDPD) on 3rd December, Jammu & Kashmir is the only place where the law meant for these people isn’t being implemented in toto. When the Rights of Persons with Disabilities Act 2016 (RPWD Act) was enacted at national level, J&K Govt failed to adopt this law nor was a similar legislation enacted in the erstwhile state. We continued to follow the obsolete Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998.
In December 2018 J&K Govt enacted a new version of persons with disability act which was almost similar to the central act (RPWD Act 2016) , but this law was repealed like many other state laws after abrogation of article 370 on August 5th 2019. On Oct 31st 2019 the central law (RPWD Act 2016) was extended to J&K and it was hoped that new law would benefit the persons with disabilities in J&K. But even after more than 2 years of its enactment the law is not implemented as the State Commissioner is yet to be appointed. The Union Territories also have a provision of State Commissioner under the RPWD Act 2016 and this office acts like a central nervous system (CNS) for implementation of the act.
Appointment of State Commissioner
The State Governments or UTs may, by notification, appoint a State Commissioner for Persons with Disabilities also referred to as the State Commissioner. The RPWD Act 2016 says that a person shall not be qualified for appointment as the State Commissioner unless he or she has special knowledge or practical experience in respect of matters relating to rehabilitation.
The salary and allowances payable to and other terms and conditions of service (including pension, gratuity and other retirement benefits) of the State Commissioner shall be such as may be prescribed by the State Government. The State Government shall determine the nature and categories of officers and other employees required to assist the State Commissioner in the discharge of his functions and provide the State Commissioner with such officers and other employees as it thinks fit.
State Commissioner is supposed to identify, suo motu or otherwise, provision of any law or policy, programme and procedures, which are consistent with the RPWD Act 2016, and recommend necessary corrective steps. The Commissioner can also inquire, suo motu or otherwise, deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the State Government is the appropriate Government and take up the matter with appropriate authorities for corrective action.
The State Commissioner is supposed to review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with disabilities and recommend measures for their effective implementation. The commissioner can also review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures and to undertake and promote research in the field of the rights of persons with disabilities. The office of commissioner has to promote awareness of the rights of persons with disabilities and the safeguards available for their protection and to monitor implementation of the provisions of RPWD Act and schemes, programmes meant for persons with disabilities, plus monitor utilisation of funds disbursed by the State Government for the benefits of persons with disabilities.
Recommendation of State Commission
Under the Rights of Persons with Disabilities Act (RPWD Act 2016) State Commissioner has powers to make a recommendation to an authority in pursuance of clause (b) of section 80. The authority shall take necessary action on it, and inform the State Commissioner of the action taken within three months from the date of receipt of the recommendation. In case the authority does not accept a recommendation it shall convey reasons for non-acceptance to the State Commissioner for Persons with Disabilities within the period of three months, and shall also inform the aggrieved person.
Powers of State Commissioner
Under section 80 of the RPWD Act 2016 the State Commissioner shall, for the purpose of discharging their functions under this Act, have the same powers of a civil court as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters:
(a) Summoning and enforcing the attendance of witnesses;
(b) Requiring the discovery and production of any documents
(c) Requisitioning any public record or copy thereof from any court or office
(d) Receiving evidence on affidavits
(e) Issuing commissions for the examination of witnesses or documents.
Every proceeding before the State Commissioner is a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860) and the State Commissioners shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Under section 84 of RPWD Act 2016 for the purpose of providing speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district, a Court of Session to be a Special Court to try the offences under this Act. For every Special Court, the State Government by notification has to provide a Public Prosecutor or appoint an advocate, who has been in practice as an advocate for not less than seven years, as a Special Public Prosecutor for the purpose of conducting cases in that Court.
The persons with disabilities in J&K especially face several obstacles in every step they take. They mostly move around in wheelchairs or use crutches.The public places that we have, are rarely made keeping in mind the comfort of people with disabilities. There are no ramps, or the hallways are too narrow for them to move. Access to better education or healthcare for persons with disabilities is another challenge. The State Commission could have played a great role in addressing these challenges. It is urged upon Govt to appoint a suitable person (preferably a person with disability) as State Commissioner under RPWD Act 2016...