Friday, November 13, 2009

Railways continues to discriminate against Persons with Disabilities

Dear Friends,

Laws fail to work when social attitudes and mindsets are rotten, diseased and highly biased towards persons with disabilities. Defect, abnormality, less fortunate, to be dealt with pity and not equal are what prevalent in our society still!

To top the list of such organisation is Indian Railways. They refuse to abide by law. Railways is a sea with so many divisions, branches, regions and due to lack of a uniform, transparent and effective system in place, rights of people get often abused at the whims and fancies of certain officials who continue to harbor such attitudes against the citizens with disabilities. This is precisely the reason that the Railways have not been able to fill up their backlog of jobs for disabled persons in a transparent manner despite Delhi High Court orders on a PIL filed by AICB, Delhi.

The present case is of Shri Jayanta Kumar Khamari, who wanted to join Railway Engineering Service and has been forcibly given Military Engineering Service. Result declared by Railways indicates his name on page 3 rank 38. Result 2007. He is still awaiting his choice posting even after two years of clearing the Indian Engineering Service. Reason- he doesn't have three fingers in the right hand!

Any physiotherapist/occupational therapist or orthopedic surgeon would opine that if one has thumb opposition available in the hand, majority of jobs requiring fine finger dexterity can be easily performed. Also in the present case, Jayanta functionally uses his left hand as efficiently as his right hand but Railway believes he can not work efficiently and his disability will affect his work. So they came up with a plea that they don't have any post identified for such candidate.

And mind you, the gentleman is working as Junior Engineer with CPWD for past several years with no adverse remarks on productivity due to disability!

High Court of Orissa has categorically expressed in its order, "We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"

Hope good sense of law and human rights will prevail and Railways will make itself more receptive to diversity (read) employees with Disabilities to be contributing members of their workforce.

warm regards

Subhash Chandra Vashishth
Advocate & Consultant -Disability Rights
0981125521, subhashvashishth@gmail.com

Click here to read from Source: Even Rahul Gandhi Failed Me

Jayanta Kumar Khamari, an Indian Engineering Service graduate, is fighting for a job in the Indian Railway Service of Engineering. He says he was assured by many leaders, including Gandhi, but the Railways denied him his choice as he doesn't have three fingers on his right hand

Rahul Gandhi, the scion of the most powerful family in the country, can give cold feet to his veteran political opponents. Yet, there are things which are beyond his reach too. Ensuring a job with the Indian Railways, for instance.

That too, despite a High Court order in support of the applicant.

Jayanta Kumar Khamari, from Bhubaneswar, met the Congress general secretary in hope that he will be able to get justice with the young leader's intervention. However, even after receiving assurances from Gandhi, the 35-year-old Indian Engineering Service graduate continues to work in the Military Engineering Service, despite achieving 35th rank in the merit list that qualifies him for the Indian Railway Service of Engineering (IRSE).

Handicap trouble

Even the Railways has no qualms about Khamari's qualification. The problem lies in his right hand that is devoid of any fingers except for the thumb. Khamari suffered from a consumption disease in his childhood, thereby causing the amputation of four fingers in his right hand.

However, Khamari turned ambidextrous and is now able to use his left hand as efficiently as his right. But, the Railways believes the disability could become a hurdle in his way of achieving success as an engineer and therefore, he was refused his preferred choice of service.

"I appeared before the medical board, which recommended me for field work after examining my hand. The Railway Board was the nodal authority for appointment and it did not take up my case, as per my choice for the Indian Railway Service of Engineers," Khamari said.

For the last two years, Khamari has been waging a pitched battle against the alleged discrimination against him.

Even ten years of Khamari's experience as a junior engineer with the Central Public Works Department (CPWD) failed to convince the bosses at the Railway Board to allow him to achieve what he truly deserved.

In the hope that the 'most powerful leader in the ruling party' (Rahul Gandhi) will ensure his choice of job, Khamari met him in August last year. But contrary to his belief in the omnipotence of the scion of the Nehru-Gandhi family, nothing happened.

Not only Gandhi, many others, including the Minister of State for Railways Naranbhai Rathwa, did not pursue Khamari's case.

"I met the chairman and secretary of the Railway Board. I also met Sanjay Mitra, joint secretary and Satyanarayan Sahu, director at the Prime Minister's Office but even they could not help me," Khamari told MiD DAY.

In court

The young engineer, however, did not lose hope and moved court against the alleged discrimination against his disability by the Railways. He lost in the lower courts, initially, yet continued his battle.

Now, Khamari has the backing of a favourable order by the Orissa High Court and an equally damning assessment of the discrimination by the Railways from the Chief Commissioner for Persons with Disabilities (CCPD).


Long fight


Apart from a frustrating wait for what he deserved, Khamari had to face several other hardships to shuttle between Bhubaneswar and Delhi.

"When my case was pending with the CCPD, I stayed in Delhi for almost two months. During that period, almost for a month, I stayed at Jagannath temple, near IIT. And then with my friends in Jia Sarai, Katwaria Sarai and Ber Sarai," said Khamari. But, now with the High Court by his side, it seems that Khamari has finally got his 'hand of God'.

What the law says

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the appropriate government in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:
i. Blindness or low vision
ii. Hearing impairment
iii. Locomotor disability or cerebral palsy, in the posts identified for each disability.

The proviso to Section 33 of the Act states the appropriate government body is at liberty to exempt any establishment from the provisions of this section by notification. From the order of the Chief Commissioner it appears there is no notification exempting the Railway from the purview of Section 33 of the Act.

The High Court said...

"We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Accordingly, we direct the Railway Board to issue necessary orders in favour of the petitioner in terms of the order of the Chief Commissioner within a period of two months from the date of receipt of this order." Justices BP Ray and BP Das, September 17, 2009

Monday, November 9, 2009

Awaited Judgement on Driving Licences to the Deaf

Dear All

I am eagerly waiting for the judgement but each time the Learned ASG has been seeking time on behalf of Govt. of India to frame rules!

Waiting for the day when he will come in the court with amended rules!

regards

Subhash

India's deaf may get licence to drive

The Government of India is considering issuing driving licences to hearing impaired people by amending the Motor Vehicles Act

Published on 11/9/2009 2:08:16 PM
By Kanu Sarda

New Delhi: India is one of the few countries in the world where the hearing impaired are not allowed to drive. But this may change soon, with the government informing the Delhi High Court it is considering changing its rules.

"We are considering issuing driving licences to hearing impaired people and thinking of amending our rules and regulations," Additional Solicitor General AS Chandiok informed a division bench of the High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

The court has granted the government three months' time to take a decision and posted the matter for December 16.

At present, the Motor Vehicles Act prohibits the deaf from obtaining a driver's licence on the ground that they could be a source of danger to the public. There is around 50 million hearing impaired in India.

The court was hearing a public interest petition by the National Association of the Deaf (NAD), seeking a direction to quash the requirement of having no hearing impairment for the issuance of a driving licence.

According to the NAD, the deaf are allowed to drive all over the world except in 26 countries including India.

"The only reason why India is not willing to issue licences is that Indian vehicles lack the special gadgets that other countries' vehicles have. But we are considering the same and hoping that we will be able to amend some rules," Chandiok informed the bench.

According to medical experts, those who can hear up to 60 decibels with the use of a hearing aid can be permitted to hold a driving licence for private vehicles, while those with a hearing level of up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

According to the petitioner, even the Delhi Police website indicates that deaf people can drive and states, "There is no reason why a deaf person cannot drive a private motorcar. However, the possibility of additional rear vision mirrors may need to be considered."

Delhi High Court relief to disabled quota suspended

Trying to know more about it, hence can't comment unless i see the order for myself!
regards
Subhash

Source: IANS
New Delhi, Nov 6 (IANS) The Supreme Court Friday suspended a Delhi High Court order to the union government to provide three percent reservation in state jobs to physically challenged persons as per a special law that accords one percent quota for visually impaired candidates.

A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam and Justice Deepak Verma suspended the high court order saying: “We are staying the high court directions. They are prima facie incorrect.”

The bench, however, clarified that it was not suspending the law for three percent reservation in state jobs to physically challenged persons, the Disabilities Act.

The apex court gave the order on an appeal by the union government challenging a Delhi High Court order, which had directed the centre to fully comply with the Disabilities Act and reserve three per cent seats for diabled persons according to its 1996 notification.

While granting the relief to the union government, the bench refused to heed the plea of National Federation of the Blind which wanted that the High Court order be allowed to operate.

Advocate Pratiti Rungta, himself visually impaired, who appeared for the federation, opposed the government’s appeal but the bench declined it saying “it is not possible to continue with the high court order.”

Rungta’s failed to convince the bench that no recruitment has been made under the Act.

Additional Solicitor General Indira Jaising contended that the directions of the high court were not workable.

The apex court had earlier directed the government to file a detailed status report regarding the extent to which the posts had been identified and filled up and also what steps had been taken to fill up the vacancies that had arisen since the Act has gone into force in 1996. The government is yet to file the status report.

Friday, October 9, 2009

Govt. buys six more weeks to amend postal insurance rules to stop discrimination against the disabled employees

Dear Friends,

This is in continuation to my earlier post on the discriminaton in Postal Life Insurance to the disabled wherein Hon'ble High Court of Delhi directed the Govt. to explain their stand. There have been some development on 07 October 2009 which are detailed below. I appreciate Ms. Sangeeta Sharma for covering this in her article for UNI and published in Indlaw.news.

regards
Subhash Chandra Vashishth, Advocate

Click here to read from Source: INDLAW

Govt seeks 6 weeks time to amend insurance rules for disabled
07th October 2009

The Centre today sought more time to amend its insurance rules for disabled to bring them at par with the insurance rules of others.The lawyer appearing on behalf of Solicitor General (SG) Gopal Subramanium told the bench, comprising Chief Justice A P Shah and Justice S Murlidhar, that the Government has had talks with the Chairman of Life Insurance Corporation and some changes have been made in the policy which governs the Insurance of the disabled.

The LIC will consult the Actuaries, ‘who will also consider the amendments and get back to us, therefore, we need at least six weeks time to make such amendments,’ the lawyer said. The Delhi High Court had earlier directed the Centre to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy, which will have no disparity for the disabled.

The Court had directed the ASG to consider the rules again and draft a policy in a manner that it should not be discriminatory and must consider the distinction between various types of disability as well as mortality factor caused by it.

‘Moreover, life expectancy and other factors should also be taken into account,’ Justice Shah said. A petition was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said, ‘Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only.’

The lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On the Rights for Persons with Disability (UNCRPD) prohibit discrimination in the insurance policy.

Ms. Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious. She told the court that there is no data available in India to show the cause of death as the death certificate des not mention it. Also, there is no data to suggest that disabled are more prone to accidents, so why they have to pay more to get a less insurance cover, Ms Bhagat said.

UNI

Sunday, September 20, 2009

When Deaf People could drive all over the World why not in India?

Dear Friends,
No wonder people often exclaim on the road "are you deaf?" when they don't get a side while overtaking another vehicle. Well, this long settled notion is going to wither away in India while we are moving towards more equalitarian and rights based society with this Writ Petition not only being admitted by the Delhi High Court on the petition filed by my colleagues at HRLN, more particularly Mr. Pankaj Sinha, the young lawyer, but also calling upon the Government of India to respond as to why this Writ not be issued and made absolute in favour of the petitioners.

You will be surprised to know that earlier also such attempts were made at Delhi High Court by the NGOs but the petitions were dismissed at the admission stage itself. But this time, a well drafted and well researched document was prepared by the lawyers and also perhaps first time articles of UNCRPD were used to articulate the injustice being meted out to this segment of the disabled fraternity in India.

World over the deaf are allowed to drive vehicles like any body else with some additional conditions of an extra back view mirror. This is with the scientific rationale that driving involves almost 80-90% visual activity and Deaf could be safe drivers without any risk to fellow travellers. Additionally with many new gadgets coming in the market to compensate the loss of hearing with other sensory organs, this discrimination is of course against the very principle of equality that Constitution of India grants to all its citizens including those experiencing hearing difficulties.

The Writ Petition being a PIL (Public Interest Litigation) is going to have far reaching consequences for the Ministry of Transport for they have to evolve now to address this issue and change all their laws, rules, procedures, forms, medical statements etc to include this segment.
I congratulate NAD (National Association of the Deaf), Advocate Pankaj Sinha and Senior Advocate Collin Gonsalves and 50 million deaf Indians on this success. We have moved a step further towards realising equality for all in India.



The news coverage:

'Should deaf drive? Centre says yes; HC to take call'

Why should an Indian deaf national be denied this right? 
COLIN GONSALVES, Senior lawyer
NEW DELHI:

Here's some good news for around 50 million hearing impaired people in the country.
The Centre has submitted before Delhi High Court that it is considering allowing those suffering from hearing disability to obtain a driving licence.

The archaic Motor Vehicles Act prohibits the deaf from obtaining a drivers' licence, saying they could be a "source of danger to the public".

The court is hearing a public interest litigation (PIL) by the National Association of the Deaf (NAD) seeking a direction to quash the requirement of having "no hearing impairment for the issuance of driving licence".

A Bench of Chief Justice Ajit Prakash Shah and Justice Manmohan on Friday recorded the statement by Additional Solicitor General A.S. Chandiok appearing for the Centre that they are considering all the relevant materials and will make appropriate recommendations on issuing driving licences to the hearing impaired. The process is set to be completed in four weeks.

Road Transport and Highways Ministry counsel Jyoti Singh said medical experts are of the view that those who can hear sound up to 60 decibels with the use of hearing aid can be permitted hold a driving licence for private vehicles, while those with hearing level up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.
Singh said a specially constituted high-powered committee of the ministry will soon meet to discuss the issue.

DELHI COPS BACK PLAN

The PIL also draws strength from views expressed by Delhi Police on its website that deafness does not render one incapable of driving safely. "There is no reason why deaf people should not be allowed to drive,"the website says. But it suggests use of additional rear-view mirrors by this category of drivers The NAD said the deaf are allowed to drive all over the world, except in 26 countries. In the UK, Australia, Germany, Belgium, Thailand and Malaysia authorities insist on special double rear-view mirrors. In Malaysia and Sri Lanka this category of drivers are to indicate the handicap by putting a sticker on the back of the car so that other drivers do not hoot at the driver. But they are not allowed to drive commercial or passenger vehicles.

Senior lawyer and human rights activist Colin Gonsalves, who represented the NAD, told the court that discrimination against the deaf in India was a clear violation of Article 14 of the constitution.

"A deaf person with an international driver's licence is able to drive in India, then why should an Indian deaf national be denied this right? The Constitution demands equality for all before the law," he said.

Thursday, September 17, 2009

Reservation on single post would amount to 100% Reservation

Dear Friends,

Many of us in the Disability sector believe that 3% reservation for the PWD can be claimed on all posts including single posts. However, the courts have several times clarified that reservation on the single posts would be discriminatory to others and is against the provisions of Constitution of India as it will tantamount to 100% reservation.
regards

SC Vashishth
To read from source, click here

Delhi HC dismisses plea for reservation to single post of VC
9/16/2009

The Delhi High Court dismissed the petition of a person who sought the court’s intervention to grant disability reservation to him in the appointment of Vice-Chancellor (VC) in newly-formed 15 universities.

A bench, comprising Chief Justice A P Shah and Justice Manmohan, dismissed the petition as withdrawn as there was only one post for the VC which could not be covered under any reservation clause.

Petitioner P R Ramanujam, who is suffering from locomotive disability and working as a professor of distance education and director of staff training and research institute in IGNOU, applied for the post of first VC in the newly formed 15 universities established under the Central University Act, 2009.

Mr Ramanujam contended that there was a statutory mechanism providing three per cent reservation to persons with disabilities, therefore, his name should be considered under the reserved category. Additional Solicitor General A S Chandhioke and Government Standing Counsel Ravinder Agarwal told the court that in this case reservation of any type could not be granted because there was only one seat for the post of VC and if reservation was granted, it would mean 100 per cent reservation. On this, the petitioner withdrew his petition.
UNI

Wednesday, September 2, 2009

Delhi High Court directs Union of India to amend Insurance Rules for the Disabled Employees

Dear Friends,

Many govt. employees were voicing their concerns on the in equal treatment meted out to them by the Govt's Postal Life Insurance Scheme where with a normal premium, the non-disabled employees were given a cover up to Rs. 5 lac while the disabled employees were given merely a cover of just Rs. 1 lac, that too with an increased premium and lot of hiccups.

Citing UNCRPD and equality principles that Constitution of India guarantees to all its citizens - including those experiencing disabilities, the matter was filed before Delhi High Court by Advocate Pankaj Sinha (an emerging lawyer with blindness who currently work with Human Rights Law Network, Delhi).

The Court not only admitted the petition on the first date itself, but also directed the Solicitor General to appear in person and respond to the discrimination. I am so happy to share this news with you today - not only because this is a welcoming move by the Delhi High Court where a case is being fought citing UNCRPD but also because Mr. Pankaj Sinha has been my associate in the past and I am proud to have groomed him in the human rights and especially disability rights discourse - to which he was initially never inclined as he always wanted to be a criminal lawyer.

Cheers to Pankaj and Cheers to the Human Rights Law Network (read Mr. Collin Gonsalves)! and also to Mr. Rajiv Raturi, Director- Disability Rights Initiative, HRLN. Would post the detailed judgement once the final verdict is delivered by the Court.


Here is the detailed article by an enthusiast reporter Ms. Sangeeta Sharma from United News Of India(UNI). She supplements that the centre had sought 6 weeks time to ammend the concerned rules on the 07 October 09 (the date of hearing). Ms. Sangeeta can reached at snguni@gmail.com.


regards
S.C. Vashishth, Advocate

Delhi HC directs Centre to amend its insurance rules for disabled

8/31/2009

The Delhi High Court directed the Central government to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy which will have no disparity for the disabled.A bench comprising Chief Justice A P Shah and Justice Manmohan directed the government to file their reply to the court within four weeks as to what will be their stand in this regard.

Fixing the matter for October 7, the court told the SG to revisit the Postal Insurance Policy as they have taken all disabled under one category. "When fixation of the policy is to be done, then you must consider the distinction between various types of disability as well as mortality factor caused by it. Moreover, life expectancy and other factors should also be taken into account," Justice Shah said.

A petition in this connection was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said,"Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only."

The Lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On Rights for Personal Disability (UNCRPD) prohibit discrimination in the insurance policy. Ms Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious.

She told the court that there is no data available in India to show the cause of death as the death certificate does not mention it. Also, there is no data to suggest that disabled are more prone to accidents so why they have to pay more to get a less insurance cover, Ms Bhagat said.

Monday, August 31, 2009

Contested Motherhood - Ms. Jo Chopra, LRF

Dear Friends,


Ms. Jo Chopra, Latika Roy Foundation, Dehradun is a fond mother and activist for the inherent human rights of those experiencing disabilitiies and particulary intellectual disabilities. This is subsequent to my earlier post reflecting my senior colleague Collin Gonsalves, Advocate, Supreme Court of India presenting the legal views and social implications of the judgement.


Click here to read from source: The Hindu - Contested motherhood
JO CHOPRA

Can the State order an intellectually-disabled person to have an abortion even though she wants to have the baby? A look at some of the issues regarding sexuality and disability…

What kind of sexuality education do children with disability need? Do people with disability even have sex lives? Do they have the right to reproduce and raise their own babies?

Of the issues confronting people with disability, sexuality is the most charged. A recent case brought many of the most compelling strands of this complex tapestry together and it took the Supreme Court to settle it.

A young woman with a mental handicap, living in a government institution as a State ward, had been raped repeatedly by two guards there. At 19, she became pregnant. When her condition was detected, the State determined she should have an abortion. The woman insisted she wanted to keep the child.
The matter went to court and it was decided she should be compelled to have the abortion. An advocate for the woman filed an appeal in the Supreme Court where, given the urgency, a speedy verdict was rendered: no woman, even one with a mental handicap, can be compelled to have an abortion.

Many people weighed in on this case but many important issues were ignored or not analysed:
A disabled woman was raped. People with mental handicaps are statistically more likely to be sexually abused. They are accustomed to being dependent on adults for many of their basic personal needs and submissive in their response to them. Vulnerable People with developmental disabilities may lack the social skills to assess a dangerous situation and the judgment to get out of it or raise an alarm. They are exposed to more “caregivers” than typically developing people. The more people one is intimately involved with, the higher the chance that one will be an exploiter.

The woman became pregnant. People with developmental disability are often assumed to be both asexual and infertile. While some disabilities do have an associated infertility component (only around 50 per cent of women with Down Syndrome, for example, are fertile), most otherwise healthy adults have the same chance of being able to reproduce as anyone and many have the same sex drive as normal people.

Her pregnancy was ordered to be terminated by the High Court, in spite of her insistence that she wanted the baby. Here is the heart of the issue. Can a person with an intellectual disability make a decision? Is intellectual capacity required for parenthood? What about the baby’s right to life? Is the State justified in forcing someone to undergo an invasive procedure?

Many who agreed with the court’s decision nonetheless believed the baby would have to be taken from the mother and reared by the State. It’s important to look carefully at biases and assumptions here.

Are we sure that a woman with a cognitive disability is incapable of taking care of her child? In theory, there is no reason to assume she couldn’t manage, albeit with support. Most able women need support to bring up their babies too. Motherhood is demanding and a high IQ may be one of the least important pre-requisites. As long as the mother is loving and attentive, as many mentally handicapped women are, and, crucially, has support from the community, a baby could prosper in her care.

Granted, that baby might not get the perfect intellectual environment, but is academic success the only goal in life? Does it guarantee happiness? A child brought up by a mother with intellectual impairment might still be deeply loved and cared for and might be satisfied and content — not things to be lightly discarded.

In spite of such logic, arguments were made about the State’s compelling interest in seeing that this child not be born. Because the baby would have to be brought up by the State, better not to allow it to be born in the first place. This reasoning is both specious and dangerous.

Many people who are not wards of the State might still be judged incompetent to bring up children. The socialite more interested in parties than in a baby’s needs, the workaholic whose ambition supersedes her parenting responsibilities, the habitual drinker, the poor woman living hand to mouth, the child bride, the list goes on.


Are we prepared to terminate the pregnancies of such women? The Supreme Court said no. Human rights cannot be granted to some people and denied to others without ensuring that eventually they will be denied to all.

What if the baby were born with a disability, as many opponents of the Supreme Court decision hinted darkly was likely?The real issue

What if it were? And here is the true heart of the matter. Disability is, I believe, “The Last Frontier” in the battle against discrimination and injustice. While people are indeed denied basic human rights for all sorts of reasons all over the world, no civilised person ever tries to justify it. When women are raped, when prisoners are tortured, when children are abused, when war crimes are committed, the civilised world recoils in horror. We speak out against human rights violations wherever we see them and so we should and so we must. Except when it comes to people with disability.

Abortion of girls because they are girls is called what it is: murder, brutality. Abortion of babies with disability is routine, sanctioned and worse, expected. In the U.S., it is estimated that 95 per cent of babies detected with Down Syndrome are aborted. Women who elect to have their babies anyway are made to feel irresponsible, reckless and unfairly burdening society. Chilling decisions
Eminent philosophers (Dr. Peter Singer of Princeton is one example) speak openly of the moral right of parents to abort handicapped babies before they are born and afterwards too. At the moment, it is acceptable only in early infancy, before parents have gotten “attached”. But as ethicists admit, if it’s acceptable to abort a disabled baby before birth, what’s wrong with doing it later? This opens the door to chilling possibilities.

Sexuality offers a prism through which we can better understand ourselves, the people around us and the values we hold most dearly. When we use it to look at disability, we may find, to our dismay, we are not the people we thought we were. Although we speak of tolerance and diversity, many of us are uncomfortable with people with disabilities making choices in their lives, distressed by the idea of them having sexual relationships and appalled by the vision of them bringing more people like themselves into the world.

The Last Frontier. It’s later than we think.

The writer is the Director of the Latika Roy Foundation ( http://www.latikaroy.org/) in Dehradun, a Resource Centre for People with Special Needs.

Monday, August 24, 2009

Dear Friends,

Here is some news from the long awaited case which has not been concluded by the Hon'ble High Court as yet. The Govt. of Delhi is still contemplating assigning one special teacher for three schools which doesn't seem to be anywhere close to the promise of Inclusive Education that Govt. of India has tried to bring out in its recent Right to Education Bill ready for the assent of the President of India.

What you have to say?
regards
SC Vashishth



To read from source click here

The Municipal Corporation of Delhi (MCD)'s much-hyped decision to screen Bollywood movies such as Taare Zameen Par to educate teachers on ways to handle disabled students has angered the Delhi High Court.
The court suggested the Delhi government should instead form a committee to identify these children and treat them in a special manner to make their future bright.
On Wednesday, Chief Justice A.P. Shah and Justice Manmohan said Taare Zameen Par did not cover all aspects of disability, but was confined only to dyslexia.

The court observed that just by watching a film, a teacher won't be able to understand how to handle the special students.

"Proper mapping must be carried out by the government and the MCD to identify the number of disabled students. Secondly, the appointment of special, qualified teachers to take care of these students is an important aspect. The state must look into this matter seriously," Shah said.

The court suggested that a committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD be formed to oversee the process.

The bench also said designated schools should have transportation facilities for these students.
The Delhi government said there were 1,746 MCD and 922 government schools, and the process of identifying disabled students was tough and could only be completed by next June.

The government counsel said it planned to appoint one teacher for every three schools. "If we go by the 1: 3 ratio, we would require 300 teachers in government schools and 600 teachers in the MCD schools with the required qualifications to teach these students," the chief justice said.

MCD schools have been facing major problems in teaching disabled students due to paucity of specially trained teachers. As it is, it is hard to find fully equipped schools to teach them. Though the MCD claims it has two or three students with disabilities in almost every school, the teachers have many a times expressed its inability to teach such students.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

The court's suggestions:
  • The Delhi government must form a committee to identify disabled students and treat them in a special manner.
  • The MCD and the government must carry out proper mapping to identify the total number of such students in the government schools.
  • The state must appoint qualified teachers to take care of them.
  • A committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD should supervise the entire process.

Wednesday, July 29, 2009

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

  • The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.
  • In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.
  • Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.
  • The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.
  • Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.
  • Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  • Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.
  • If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.
  • However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).
  • Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.
  • However, in the instant case, the issue was of denial of promotion and not saving the job.
  • As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.
  • However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.
  • However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.
  • The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types the way PWD Act does hence perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.
  • Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to relegate him to be medically unfit for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.



The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate



Friday, July 24, 2009

Detailed Facts of the Chandigarh Case of Raped Mentally challenged Girl's Pregnancy

Dear Friends,

My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!
For those who are keen on accessing the Supreme Court Final judgement, they may access from here: Final Judgement: Shuchita Srivastavs Vs. Chandigarh Administration
Justice Kannan, a sitting Justice of Chandigarh highcourt, who is also a blogger since 2007 has reflected on this case on his blog which might be of interest to the readers. You may access Justice Kannan's perspective here.

The detailed note from Shri Collin Gonsalves also includes both judgements from the High Court of Punjab & Haryana which elucidates the reasoning for the order later reversed by the Hon'ble Supreme Court as informed in my earlier post. To me in either case, the girl has suffered and would suffer. By allowing the girl to retain the pregnancy, it might have been a win for pro-life activists but the track record so far in this case does give a grim picture of society and social organisations coming forward to support leave the Govt. setup aside where such a terrible incident occured.


Here is the note for your information:

The Right to Abort Vs. The Right to Give Birth

Chandigarh Administration Vs. Nemo

Colin Gonsalves

This note is being circulated so that you may have a look at the facts before the High Court in this case so as to make an informed decision on the merits of the case.

Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.

The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman’s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.

In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.

A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she also cries almost daily”. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:

“2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.

3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.

4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.

5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.

6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.

7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]”.

Click here for remaining part of the note

Click here for the Part-I of Punjab & Haryana High Court Judgement

Click here for the Part-II of Punjab & Haryana High Court Judgement
regards
SC Vashishth, Advocate

Thursday, July 23, 2009

Employees with Disabilities can be denied promotion on grounds of efficiency, security and safety.

Dear Friends,
We have got in to a habit of opposing any thing that takes away rights of the disabled. But here is the time to think, cogitate and reason out. While on one hand the enabling PWD Act says that Promotion can not be denied on the grounds of Disability, this black judgement says people with disability can be a risk to safety & security to equipments, themself and to the organisation they work for, etc!
Hon'ble Supreme Court has said that Efficiency can be a ground to refuse promotions to those with disability if their disability poses a threat to the security, safety and efficiency. The issue is very sensitive for it goes against the intent of the beneficial legislation and poses threat of stagnation before an employee with disability or those who acquire a disability while in service.
The PWD Act actually mandates a social security system for those who happened to acquire disability or have disability that they don't get stagnated. And it is well known now that with assistive aids and devices, the employees with disabilities are no less than their non-disabled counter parts.
The problem is that there is no rehabilitation programme for those who acquire disability during service and also there is no sensitization in the superior officers who recommend or decide on promotions and sit in the Selection Committees and DPCs!
Even this judgement seem to be going against the spirit of the PWD Act and also doesn't take in to account the role of modern technology in enabling a person with disability while at work. Its easy to label some one unproductive, inefficient, risk for security and safety but equally difficult to remove these labels.
To me, this judgement reflects the attitude of general society toward the disabled. It reinforces a minimum medical standard for promotion even for disabled people. There were already biases and negative attitudes but the law was enabling the employees with disabilities to fight back and seek their rights.
I am sure this judgement would go as a dark phase in the history of disability and development and employees would never be promoted under this garb and would remain stuck at where ever they are.
I fear that under these situations and conditions, the Courts might come against Section 47 also and refuse the employee acquiring disability during service to even continue on the present post in the garb of security, safety and efficiency!! I deeply regret this judgement for I don't find it any way close to the intent of The Persons with Disabilities Act and as well as UN Convention on Rights of Persons with Disabilities!
My experience with The Indian Railways has been very negative so far as the rights of disabled in employment are concerned. At each step they have refused to accommodate people with disabilities in their workforce on some or the other ground and the sector had to knock the doors of the Judiciary. We had favourable judgements from the highly sensitized judges of High Court of Delhi and other high courts but this time the Railways have managed to manipulate and misrepresent the abilities of people with disabilities before the court as well as perpetuated their age old believe that disabled employees pose a risk even in the controlled set up like research laboratories!!
To me, its more a case of improper and misrepresentation of facts and law before the double bench and this is not in the interest of the disability sector. I don't see that after this judgement, the long list prepared by Min. of Social Justice of the Jobs suitable for People with disabilities is of any relevance!!
regards
SC Vashishth, Advocate-Disability Rights
To reach from source click here: Times of India
Efficiency can be a ground to deny promotion to a disabled: SC
Dhananjay Mahapatra, TNN 23 July 2009, 03:43am IST

NEW DELHI: In a significant judgment, the Supreme Court has ruled that the government or an employer can deny promotion to a disabled person if they are of the opinion that it can compromise efficiency, security or safety.
A Bench comprising Justices R V Raveendran and P Sathasivam gave this ruling despite being fully aware of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandated that "no promotion shall be denied to a person merely on the ground of his disability". Allowing an appeal of the Union government, the Bench said the 1995 Act would have no significance where the employer stipulated minimum standards for promotion keeping in view safety, security and efficiency.
"If the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then the Act would not be attracted, nor can it be pressed into service for seeking promotion," said Justice Raveendran writing the judgment for the Bench.
Clarifying that it was not against the legislative intention behind the 1995 Act, the SC said: "Where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion merely on the ground of his disability."
The Bench said it was aware of the intention of the Act, that was to give a helping hand to persons with disability so that they could lead a self-reliant life with dignity and freedom. "But, the intention of the Act is not to jeopardize the safety and security of public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability," the Bench said.
The apex court, through this judgment, upheld the prescription of a minimum medical standard for promotion from Senior Research Assistant to Chief Research Assistant in the Research Designs and Standards Organisation of the railway ministry and upheld the Union government's decision not to grant promotion to a disabled person who did not meet the minimum standards.
dhananjay.mahapatra@timesgroup.com

Tuesday, July 21, 2009

The Raped Mentally challenged Girl can continue her pregnancy- says SC

Dear Friends,

This has reference to my earlier post on the subject. Finally, what I guessed turned out to be right. The Court allowed the girl to continue with her pregnancy. A strong argument that "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state" was successfully used.

Another argument "why should poor women, who are found lacking in bringing up their children should be allowed to have babies? if this girl with mental retardation is to be disallowed the motherhood only on this ground that she can not bring her up" was also used.

The life won and won the motherhood! UNCRPD, right to life, Right to motherhood, and social support were all discussed. The arguments were touching and Supreme Court gave in! Congratulations to life and pro-life and pro-right activists and so to the concerned pro-abortion activists as this much publicised matter would eventually provide some support structures to the girl and her coming baby!

regards

SC Vashishth

To read the news from source click here

Raped mentally challenged girl can continue pregnancy: SC

Dhananjay Mahapatra, TNN 21 July 2009, 03:54pm IST

The Supreme Court on Tuesday allowed a mentally challenged orphan girl who was raped at a Nari Niketan in Chandigarh to continue her pregnancy resulting from the sexual assault. The apex court was initially reluctant to interfere with a Punjab and Haryana High Court order directing medical termination of the pregnancy. But it changed its mind after counsel Tanu Bedi crafted her arguments based both on law and emotional grounds.

When the CJI expressed concern as to who would take care of the baby and what would be the health of the newborn, more so since the girl had no one to look after her, Bedi in her 40-minute long monologue repeatedly put these questions to the court — "Why would a girl, even if mentally retarded, be deprived of motherhood which is her right? If her mental age was a consideration for the judiciary to think that she could not take care of her baby, why should poor women, who are found lacking in bringing up their children, be allowed to become mothers?"

She said medical termination of pregnancy could not be done under law without the consent of the mother. "And here is a case where the girl wants to keep her pregnancy. She has no blood relation in the world. Should we not help her to get her first blood relation in the baby she is carrying now," Bedi asked. The arguments not only touched the Bench but every one present in the court as Bedi went on, "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state."

If the Bench was worried about the future of the baby and whether the girl, with a mental age akin to that of a 9-year-old, could take the strain of motherhood, it was supported by senior advocate Colin Gonsalves, who appearing for a social activist cited medical reports that cast doubt on her ability to handle motherhood.

Further Readings: http://timesofindia.indiatimes.com/NEWS/Sunday-TOI/View-From-Venus/Whose-baby-is-it-anyway/articleshow/4820858.cms

Motherhood is for all? Debate rages in SC- Hindustan Times

Dear friends,

A rather tricky legal entangle from High Court now in the Supreme Court. A tussle between pro-life and pro-choice activists and at stake is the life of a 19 year mentally retarded unwed and orphaned girl stranded in a state run home! Any delay can be a peril to her life. And I am sure the delay would not allow any abortion eventually in this legal entangle and pro-life activists are most likely to win - not because of their arguments for life of child and the rights of the girl to have her baby but because of the inherent threat to the life of the challenged girl that an abortion would pose after 20 weeks!!

Links of the News Items
Hindustan Times: Motherhood is for all? Debate rages in SC- Hindustan Times
Indian Express: http://www.expressindia.com/latest-news/terminate-pregnancy-of-mentally-challenged-rape-victim-orders-hc/490988/

Here is the debate that went on on the Facebook for your information:

Subhash Chandra Vashishth
Would this be a travesty of justice and permanent addition to the miseries of the orphaned girl ? The supreme court has to take a decision on urgency taking a holistic approach and giving due emphasis to social, physical, mental capacity and financial conditions! Can't afford to prolong such matters before various courts!

Jo McGowan Chopra
Not that simple, I'm afraid. Leave aside the issue of the baby's right to life (which doesn't seem to even come into the argument), the young woman in question has expressed a strong desire to keep the baby. Are her wishes to be ignored? She is said to have the intellectual age of a nine year old. Nine year olds are very capable of making good decisions, especially if given support by wise, impartial older friends. Does the court feel that all people of limited intellectual ability should be prevented from having children? Are we prepared to make such decisions for other people, particularly when they have expressed their convictions repeatedly and with force?

Jamie Osborne
If the woman is a ward of the State, then what the State says goes. As far as I know, the UNCRPD doesn't ensure that people with developmental disabilities have more say over their possible futures than their guardians...

Subhash Chandra Vashishth
Thanks Jo for your view and I agree with your argument but where is the support by wise and impartial older friends. She is in a state run home for mentally challenged where two security guards were involved in raping her. God knows how many others have been treated there similar way. I am only worried about the future of the child who would have no support but to remain in the same home and the mother may not be able to look after the interest of the child. The fear is what if the child is a girl .... Thanks Jamie for your opinion, the girl is under the guardianship of the state, however, since it was a criminal case, the matter is subjudice hence any action needs to be okayed by Court.


Rama Chari
If the girl has desired to keep the baby, she should be allowed to do so.. She has equal rights like anybody else.

Jo McGowan Chopra
The wise and impartial friends have to be us, I think. Surely there is some NGO in Chandigarh which can help this young woman? And if we are truly concerned about the baby, is killing it the way to express that concern?

Subhash Chandra Vashishth
Between the two groups of Pro-life & Pro-choice activists the young girl is waiting for answers from the Supreme court. May be it is the right time that some NGO then takes her in to their guardianship and provide crucial support. My dear senior colleage Senior Advocate Collin Gonsalves, who incidently also heads HRLN is pro-abortion for he seem to... Read more believe that all those who are showing support to the girl to have a baby will not be found when she would need some support!

Jo McGowan Chopra
Colin may be right. But there are definitely pro-life people who WILL step forward if the baby needs a home. I think my husband and I are too old to do it ourselves, but I think I could find someone willing.

Kavita Agrawal
Another question that comes to my mind is that whether any one is coming forward to take care of the child should the girl be allowed to have the child. It is Ok to talk about society supporting the girl. I don't see any of the so called society people coming forward to take care of the girl and the child. if we had such responsible society probably the rape wouldn't have taken place at all......people would have been more sensitive....