In the Court of State Commissioner for
Persons with Disabilities
National Capital Territory of Delhi
25-D, Mata Sundari Road, Near Guru Nanak
Eye Centre, New Delhi-2
(Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016)
Case No. 988/1141/2019/06/ 3652-3657 Dated:
22.07. 2019
In the matter of:
SUO-MOTU
Versus
The Principal Secretary,
Department of Law, Justice
& Legislative Affairs
Government of NCTof Delhi,
8th Level, C-Wing, Delhi Secretariat,
Players Building, I.P. Estate,
New Delhi – 110002. .................... Respondent
Date of hearing: 18.07.2019
Present: Sh.
Lovleen, Additional Secretary (Law) and Sh. M.B. Malhotra, Dy.Secretary (Law)
on behalf of Respondent.
ORDER
Section 84 and 85 of
the Rights of Persons with Disabilities Act, 2016 hereinafter referred to as an
Act, provide as under:
“84. 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 Sessions to be a Special Court to try the offences under this Act.
85. (1) For every Special
Court, the State Government may, by notification, specify 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.”
2.
Rule 51 of the Delhi Rights of Persons with Disabilities Rules, 2018, herein
after referred to as Delhi RPwD Rules, prescribes the terms and conditions of
appointment of public prosecutors to be appointed in the Special Courts and is
reproduced below:
“51. Appointment of Public
Prosecutor-
(1) The Public Prosecutor to be appointed in
every Special Court shall have-
(a) practical experience of
handling cases preferably of persons with disabilities;
(b) experience at the Bar of
not less than seven years; and
(c) shall be well versed
with local language and customs.
(2) The fee and other
remunerations of the Special Public Prosecutor specified or appointed under
sub- section (1) of section 85 of the Act shall be the same as that of Public
Prosecutor appointed by the Government of National Capital Territory of Delhi
under the Code of Criminal Procedure, 1973 (1 of 1974) for conducting the cases
before a court of session.”
3. Secretary
(Social Welfare), GNCT of Delhi was requested to take action for specifying the
Special Courts and Special Public Prosecutors vide letter dated 25.01.2018. Social
Welfare Department vide letter dated 27.02.2018 informed that the Department of
Law, Justice and Legislative Affairs had approached the Hon’ble High Court for the
purpose.
4. Thereafter
the matter was taken up with the Department of Law, Justice and Legislative
Affairs, Govt. of NCT of Delhi vide letter dated 08.03.2018 followed
by reminders dated 27.04.2018,
16.05.2018, 26.06.2018 and D.O. letter dated 31.12.2018 and letter dated
20.02.2019. Registrar General, Hon’ble
High Court of Delhi was also requested to intimate the status.
5. Vide
letter dated 28.05.2018 and 10.07.2019, Registrar General, High Court of Delhi informed that
no request to designate Special Courts under the Act had been received from
Govt. of NCT of Delhi. However, a
request from the District and Sessions Judge (North), Rohini, Delhi had been received and was pending
consideration of the Hon’ble Court.
6. As
there was no response even after lapse of sufficient time, vide
Show-Cause-Cum-Hearing Notice dated 17.06.2019,
Department of Law, Justice and Legislative Affairs was directed under Section 80.(b) of the Act to show cause why
the Special Courts and Special Public Prosecutors should not be specified in each district by 11.07.2019 and if the
same was not done by the said date, it
was decided to hold a hearing on 18.07.2019 under Section 82 of the Act and
Rule 49 of Delhi RPwD Rules.
7. Joint
Registrar (Gazette-I) High Court of Delhi vide letter dated 10.07.2019 informed
as under :
“Sub:
Notice to show cause-cum-hearing notice – Case No.F.988/1141/2019/06/2764 dated
17.06.2019.
Sir,
I am directed to refer to
the copy of Notice to show cause-cum-hearing dated 17.06.2019 issued by your
Court in the case mentioned above and to inform that this Court vide letter
dated 08.10.2018 (Annexure-‘A’) had already made recommendation to the Govt. of
NCT of Delhi to issue necessary notification with regard to designation of
Court of Additional Sessions Judge-02 in each District as Special Court to try
the offences under the Rights of Persons with Disabilities Act, 2016. Thereafter, the Addl. Secretary, GNCTD,
Department of Law, Justice & LA vide this Court’s letter dated 17.12.2018
(Annexure-‘B’) was again informed about the said recommendations. However, no response has been received from
them till now.
Yours faithfully,
(Krishan
Kr. Sharma)
Joint
Registrar (Gazette-I) for Registrar General”
8. On
18.07.2019, Sh. Loveleen, Additional Secretary (Law, Justice,& LA) and Sh.
M.B. Malhotra, Dy. Secretary (Law) appeared and submitted reply dated
18.07.2019, which is reproduced below:
“Sub: Notice to show
cause-cum-hearing notice – Case No.F.988/1141/2019/06/2764
dated 17.06.2019.
Sir,
In pursuance to your show
cause-cum-hearing notice for non designating the Special Court and Special
Public Prosecutor in each district in accordance with the provision of Sections
84 and 85 of the Rights of Persons with Disabilities Act, 2016 and Rule 51 of
the Delhi Rights of Persons with Disabilities Rules, 2018, it is submitted that
Hon’ble High Court of Delhi vide letter dated 8.10.2018 had already made
recommendations to the Govt. of NCT of Delhi to issue necessary notification
for designating the Court of Addl. Sessions Judge-02 in each District as
Special Court to try the offences under the Rights of Persons with Disabilities
Act, 2016.
The matter was processed for
issue of notification immediately after receipt of recommendation from Hon’ble
High Court of Delhi and the file is under process since then. The file was last sent to the Hon’ble
Minister (Law), Govt. of NCT of Delhi on 03.07.2019 with the request to place
the proposal before the Hon’ble Lt. Governor of Delhi for taking further action
for issue of notification. The file is
under consideration with Hon’ble Minister (Law) Office since 03.07.2019 (copy
of file monitoring is enclosed).
After receipt of your
aforesaid notice, a letter dated 11.7.2019 has also been sent to the office of
Hon’ble Minister (Law) to expedite the proposal in view of notice issued by the
State Commissioner for Persons with Disabilities (copy enclosed). However, the same is awaited.
This issues with the prior
approval of the Principal Secretary (Law, Justice & LA), Govt. of NCT of
Delhi.
Yours sincerely,
(Loveleen)
Addl.
Secretary (Law, Justice & LA)”
9. In
view of the above, Addl. Secretary (Law, Justice& LA) requested that at
least one month may be allowed and the developments in the matter would be
regularly intimated to this court.
10. During
the course of hearing, Sh. G.P. Singh,
Secretary to Hon’ble Minister, Law, who was contacted on telephone, informed
that the file would be sent back soon with Hon’ble Minister’s comments.
11. After
detailed interaction during the hearing, it appeared that there was lack of consensus
on whether the notification can be issued with the approval of the Hon’ble
Minister of Law or it has to be approved by and issued in the name of the Hon’ble
Lt. Governor of Delhi.
12. All
concerned need to appreciate that Section 84 and 85 of the Act are
mandatory. The Act, which has been
enacted to give effect to the United Nations Convention on the Rights of
Persons with Disabilities after ratifying the said Convention, must be
implemented in right earnest and with promptitude. Failing this, the very purpose of enacting
one of the most comprehensive and forward looking legislations for empowerment
of persons with disabilities and their inclusion in the society will surely be
lost. If implementation of a simple yet
mandatory provision of the Act is allowed to be entangled in the procedural
disputes, the high expectations and hopes that this Act has generated amongst
persons with disabilities in the NCT of Delhi will be shattered. It also would give
an impression that the right holders and the authorities are not serious enough
in implementing the socially beneficial legislation and are indifferent to protecting
their rights who still remain one of the most marginalised sections of the
society.
13. Although
no time frame for specifying Special Courts has been prescribed, yet inordinate
delay in implementing the mandatory provision of Act actually amounts to
contravention of the said sections of the Act and the Rules made thereunder and may attract penal action under section 89
of the Act.
14. It
is learnt that notifications for appointment of Presiding Officers of Family
Courts and appointment of Notaries have recently been issued after the intervention
of Hon’ble High Court of Delhi.
15. In
view of the fact that more than two years have elapsed since the Act came into
effect on 19.04.2017 and the stalemate between the concerned apex authorities,
no purpose will be served by granting a month’s time as requested during the
hearing and keeping this case pending as neither the provisions of the Act/
Rules nor the prescribed procedures and the orders of Hon’ble Courts on the
subject are likely to be changed in a month or two. I therefore consider it
appropriate to dispose of the matter with the following recommendations in the
larger interest of persons with disabilities:
(i) Principal
Secretary, Law, Justice and LA, Govt. of NCT of Delhi should implement the
recommendation of the Hon’ble High Court of Delhi that Additional Sessions
Judge-02 of each court be specified as Special Court to try the offences under
the Act and specify Special Public Prosecutors for conducting the cases in the
Special Courts within 10 days of receipt of this order being the requirement of
the law.
(ii) The
copy of the notification(s) be submitted to Registrar General, Hon’ble High
Court of Delhi and the State commissioner for Persons with Disabilities by 06.08.2019.
(iii) If
the Special Courts and Special Public Prosecutors are not specified and the notification
(s) is / are not received by 06.08.2019, Registrar General, Hon’ble High Court
of Delhi is requested to place a copy of this order before Hon’ble Chief
Justice of High Court of Delhi for information and necessary action so as to
ensure that the concerned authorities specify Special Courts and Special Public
Prosecutors as mandated under Section 84 and 85 of the Act and Rule 51 of the
Delhi RPwD Rules without further loss of time.
16. Principal
Secretary, Law, Justice and LA and Registrar General, High Court of Delhi are
advised to inform the State Commissioner for Persons with Disabilities of the
action taken on the recommendations within three months from the date of receipt
of this order as required under Section 81 of the Act.
17. The
case is accordingly disposed of.
18. Given
under my hand and the seal of the Court this 22th day of July, 2019.
State Commissioner for Persons with
Disabilities
Copy to:
1. Chief
Secretary, Govt. of NCT of Delhi, Delhi Secretariat, IP Estate, New Delhi –
110002, Email: csdelhi@nic.in : For information.
2. Principal
Secretary to Hon’ble Lt. Governor of Delhi, Rajniwas, Delhi, Email: seclg@nic.in : For information of the Hon’ble Lt. Governor
of Delhi.
3. Secretary
to Hon’ble Minister of Law, Justice and LA, Room No. 808, A-Wing, Delhi
Secretariat, New Delhi-110002, Email: minlawtpt.delhi@nic.in : For information
of Hon’ble Minister of Law.
4. The
Registrar General, High Court of Delhi, Sher Shah Road, New Delhi110503, Email: rg.dhc@nic.in
: For information and necessary action on Para 15. (iii) of this order.
5. Secretary
(Social Welfare Deptt.), GLNS Complex, Delhi Gate, New Delhi, Email: pssw@nic.in
: For information.
( T.D. Dhariyal )
State Commissioner for Persons with
Disabilities
