Thursday, April 26, 2012

ICAI imposes arbitrary Writers / Scribes Conditions for Students with Disabilities

Dear Colleagues,
The Institute of Chartered Accountants of India (ICAI) is organizing its annual exams starting 03rd May 2012. It has provided “INSTRUCTIONS TO EXAMINEES – MAY, 2012” at link: http://220.227.161.86/26540exam15942.pdf. These instructions are utterly silent on the conditions for  Scribes allowed for Persons with Disabilities as per law, though they are exhaustive on other conditions to be met /observed for the examination.

This time the candidates with disabilities have been surreptitiously sent a three page document titled “Guidelines and Procedure to be followed regarding granting of Writer/ Extra Time to the Differently Abled Candidates”. Coincidentally, this document has not been provided  on the Institute website though is purported to have been adopted by Examination Committee during January 2012 and effective from May 2012 examinations. 

These impugned guidelines are illogical, arbitrary and work against the spirit of The Persons with Disabilities Act 1995 that aims to ensure equal opportunities, Protection of Rights & Full participation of persons with disabilities since they insist the following conditions among others:
  1. The writer should not be above 20 years of age as on the date of commencement of a particular examination for which the writer’s assistance would be utilized by a candidate (for instance 02nd May 2012 for May 2012 CA Examinations)
  2. The writer should be the same person for all the papers of an examination and no request for change of writer shall be permitted.
  3. The writer should not be a relative of the candidate for whom he / she is acting as a writer.
The students with disabilities are in shock as they can not meet such arbitrary guidelines forced upon them. However, most students are not willing to come openly  against the institute for fear of a backlash which may spoil their career.


None of the earlier guideline (for 2007 or 2010 exams) which are available on the ICAI’s website at link: http://www.icai.org/new_post.html?post_id=639 do not contain any of such arbitrary and illogical conditions. The conditions put forth are unreasonable & discriminatory against persons with disabilities and defy the objective and mandate of the Disabilities Act.

I have been approached by several students who have failed to find writers below the age of 20 and are most likely to fall in to trap of missing their examinations despite their good preparation for the same.

Also since this is an exam season and most teen-aged students who may be eligible to act as writer as per the eligibility condition put forth by the new guideline,  are busy in their exams hence it is next to impossible to meet such a unreasonable guideline. Moreover, the relatives have been barred from acting as a writer. I am wondering as to who would then come forward to help (even at a cost!) to write for them. They are bound to fail due to lack of level playing field!

The condition that write should be same for all the papers spread over a length of period is also a detrimental to the interest of the examinee  since the teenager, who may agree to write the exam for the disabled student may have his own exam clashing. Then most students in graduation second or third year are more than 20 years.

Such attitude with the students with disabilities is an open discrimination and a discouragement for them to enroll for the course and not only is against the mandate of the Disabilities Act but also Article 14 of the Constitution of India that ensures equality to all. The names of the students have been withheld on their request since they fear revengeful action on the part of ICAI.

I have taken up the matter with the Chief Commissioner- Disabilities and hope that good sense will prevail over the ICAI and they would withdraw the unreasonable guideline.


If you remember, recently, several organisations working for the Persons with disabilities in India (especially Low Vision and Blind), to which I have been a party myself, have suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons". These have been sent to Ministry of Social Justice for their acceptance. In all probability these would be accepted since the content is the revised edition of the draft guidelines discussed in the Meeting of the State Commissioners Disabilities in the year 2008, if I correctly remember hence has a principal approval from the authorities.


I suggest the ICAI to accept these guidelines in toto for implementation in all their examinations (including the one in May 2012) and take a lead in being the first progressive and disabled friendly institution of the Government of India.


regards,
Subhash Chandra Vashishth
Advocate- Disability Rights

Tuesday, April 24, 2012

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC


Dear Colleagues,

While we all agree that each medical history and document is confidential and carries sensitive information about the patient undergoing treatment and can not be revealed to a third person. However, by simple logic that its my treatment process, I have full right to know about it! How can I be denied of my right to access my own treatment document?

We have had several examples where persons were forcefully admitted in to mental institutions since their spouses or  family members observed certain "symptoms" and the patient never came out since there exist no process that can be initiated by the patient himself even if he is all right. Such methods have often been put to (mis)use by husbands against the wives to settle matrimonial cases and in many other cases, by other family members to grab the control on the property of the victim.

In the instant case before the Delhi High Court, the High Court has overruled the decision of the Central Information Commission that had directed the hospital IHBAS to provide the info to the patient. The judiciary need to be more sensitive and aware of the rights of persons with disabilities given India's commitment to UNCRPD and the regime of  right to information besides the Indian Constitution that assures to all citizens equality before law. The document related to medical (psychiatric) treatment must be provided to the patient.  Could they have done same with a heart patient or a kidney patient?

While the hospital may refuse husband or other family members citing confidentiality, the patient has the first right to access her treatment documents and she has a right to second medical opinion on the basis of the treatment record. Its not the property of the hospital!

Here is the news from Indian Express.

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC
Pritha Chatterjee : New Delhi, Tue Apr 24 2012, 


Do psychiatry patients have the right to access records of their treatment? While the Central Information Commission (CIC) directed a mental health hospital to provide this information to a patient, the hospital has moved court citing confidentiality.

The Delhi High Court has given the Institute of Human Behaviour and Allied Sciences (IHBAS) a stay order against disclosing the information till the next hearing in September.

The case pertains to a 32-year-old married woman. She was admitted to IHABS in April 2011 by the hospital’s mobile health unit from her Gurgaon home, after her husband approached hospital with her “symptoms”.

According to Dr Nimesh Desai, director of IHBAS, “Confidentiality of psychiatric information — which includes all information disclosed by different parties related to the patient for treatment purposes — is a very fundamental concept. It is something every psychiatrist promises his interviewees verbally. Unfortunately, till date, India does not have a legal provision regarding this. The unique nature of this information — which includes historical information of the patient, his or her recollections, fantasies, feelings, fears and preoccupations from the past as well as in the present — distinguishes it from other medical records.”

The patient was discharged after four days and has since been staying with her mother in Bhopal. After her discharge, she filed an RTI seeking “the basis for my admission, doctor’s observation, and clinical examination reports, and doctor’s observation...”

Meanwhile, the patient’s husband, too, filed an RTI application, seeking the reasons of his wife’s discharge, “without my information.”

In both cases, IHBAS authorities stated that “the information sought was provided by the patient and her husband, which is sensitive/confidential in nature.”

“The need for discretion in disclosing psychiatric information is compounded in cases like this, where there is a possible marital discord and each seeks such history to use against the other,” Dr Desai said.

The December 2011 CIC order by Information Commissioner Shailesh Gandhi stated that while the hospital was exempted from disclosing treatment records to anyone other than the patient, “these precedents are not relevant when the information is being sought by the patient herself”.

Arguing against this, in their writ before the High Court, IHBAS said, “that every party disclosed information in confidentiality to the psychiatrist and the hospital should not give it away to anyone, including the patient.”

The disclosure of information contained in psychiatry case records would discourage the patients and their relatives to furnish personal and sensitive information and they would prefer to withhold such information, which would largely affect the treatment,” the writ stated.

Meanwhile, the patient’s family said they were “exploring legal options, on this violation of the CIC order.”

Source: Indian Express

Sunday, April 22, 2012

Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled - Delhi HC [Judgement Included]

Dear Colleagues,

Refer to my earlier posts on 02 Sep 2009, 09 October 2009 and 21 January 2010 on the issue since the matter has been pending before the Delhi High Court. There were several occasions that the Court was about to pronounce judgement however, Union of India bought time on each hearing with a promise that they are amending the rules to remove the discriminatory practices against the persons with disabilities (read employees) in insurance sector and dragged the case to 2012. However, at the end, the court got infuriated the way the Government turned turtle on their own statement before the court and tried to justify the discrimination of extra premium.

The brief background of the case

In the instant case, the petitioner Mr. Vikas Gupta, through a public interest litigation, filed by  Mr. Pankaj Sinha, a lawyer with visual impairment from Human Rights Law Network,  brought to the notice of the court that the Postal Life Insurance Policy issued for the benefit of government employees was inherently discriminatory against employees with disabilities. It allowed the maximum sum insured for employees with disabilities to only Rs. 1 lac while their non-disabled counterparts enjoyed a maximum insurance cover of 5 lacs. Not only this, the employees with disabilities were paying a higher premium than those without disabilities.

Thus through this litigation, the petitioner sought parity in the maximum sum assured and premium charged from the employees with disabilities in comparison to the employees without disabilities. When the matter came up for hearing and notice was issued, Postal Life insurance realizing their follies, issued a notification during pendency of the petition raising the maximum insurance coverage for employees with disabilities to that of non-disabled employees i.e. up to Rs. 5 lakhs. However, they continued to charge extra premium from the employees with disabilities.

The petitioner argued that the extra premium charged was without any scientific justification. When the court sought explanation from PLIC, the Additional Solicitor General stated before the court that they do not discriminate on the basis of disability and there is no extra premium charged.

However, later Union of India turned turtle on their statement and justified the extra premium from the employees on the blanket ground of disabilities and argued that the Insurance Policy was a contract between the insurer and the insured. That in the insurance business a pool was created through contributions made by persons seeking to protect themselves from common risk. Premium was collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event was paid out of this pool. It worked on the principle of risk sharing. Therefore, prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.  Hence, it is justified to charge extra premium from the employees with disabilities. They also argued that extra premium payable by the disabled person is marginally different from the premium payable by normal persons. Further they justified the extra premium on the ground that the extent of handicap differs from one person to another and that they would continue to charge differential premium decided upon the health profile of the individual proponent.

The petitioner argued that the extra premium clause has no scientific base nor can be justified by any legal enactment or any empirical study. On the contrary, such a standalone stipulation for Persons with Disabilities in form of a special scheme in the Postal Life Insurance for Government employees was discriminatory, non-inclusive, unjust and violates principles of natural justice of equity and fairness and above all it ran against the mandate of the Persons with Disabilities Act 1995 and the UN Convention on the Right of Persons with Disabilities that India is a proud signatory to. Further, it specifically violated Articles 3 and 25(e) of the UN Convention.

The petitioner accepted the rationale of PLI to the extent that any loss to the insured in case of happening of an uncertain event is paid out of this pool and that it worked on the Principle of risk sharing. However the petitioner strongly refuted that disabled persons are more prone to accidental risks as compared to normal persons. On the contrary, the petitioner argued, there was no empirical study or data to support or substantiate such a baseless, false and biased view which only reinforced the stereotypes about persons with disability and their proneness to accident.

Petitioner argued that the right to equality and non-discrimination were inalienable rights which couldn't be taken away by any contract and charging extra premium from employees with disabilities was a direct discrimination with them on the basis of disability which was in direct conflict with Article 2 of UNCRPD.

The petitioner also argued that the justification of health profile put forward by the respondents was faulty for they seem to treat disability as a negative health profile. It was stressed that living with disability was distinct from suffering from a life threatening disease, while the respondent seemed to consider both as synonymous. An employee with visual impairment or with hearing impairment or with neurological impairment also enjoyed good health like anybody else. Therefore, an employee living with a disability would not mean that he / she was suffering from a disease and prone to life risks or susceptible to die prematurely. Such a conclusion on the part of respondent was illogical, arbitrary, had no empirical base and without any understanding of disability, hence, such a conclusion was required to be struck down.


Hon’ble High court in the instance case agreed that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and therefore through this remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.
The Road Ahead

I see this judgment  as a milestone in the disability rights movement with far reaching implications not only in India but also beyond India and especially in European countries where the Actuaries continue to discriminate against persons with disabilities by under-valuing their lives. However, India, its Courts and the persons with disabilities are very progressive on this front and the western countries can follow suit at least on this count.

This is just a beginning. We need a well devised future strategy  to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the immediate challenges are:

(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. causes of disability, whether it is from birth and after birth; neurological or physical and  then rates their lives accordingly,  which in my considered view has again no scientific base.

(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.

(c) PLI is an insurance scheme for the benefit of government employees hence, it will cover a very small section of persons with disabilities. Those who are outside the government jobs especially those in rural areas are far away from reaping the benefits of insurance. Though the judgement challenges the principles that have so far formed the basis for denying the  insurance to the disabled.

(d) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware not only about the lives of persons with disabilities but also the rights regime that UNCRPD brings.

(e) The entire literature on insurance that I had to read while pursuing this case from outside, I found it reinforced the stereotypes about persons with disabilities and their proneness to accident! Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile and that living with disability was distinct from suffering from a life threatening disease.

(f) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.

(g) The rules of Insurance sector needs to be changed in light of this judgement and applied across the sector. All insurance  issuing companies - be it private or government have to factor in the principles of this judgement and make amends.

(h) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means.  

I am sure we all are up for it and would take this to its logical end.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights

Wednesday, April 18, 2012

New York's Taxi of Tomorrow faces Accessibility Lawsuit

    Dear Colleagues,

The Nissan NV200 taxi van is seen during the 2012 New York International Auto Show at the Javits Center in New York, April 4, 2012. REUTERS/Andrew Burton (UNITED STATES - Tags: BUSINESS TRANSPORT) - The Nissan NV200 taxi van is seen during the 2012 New York International Auto Show at the Javits Center in New York, April 4, 2012. | Andrew Burton/Reuters
The Nissan NV200 taxi van showcased
during the 2012 New York International Auto Show
at the Javits Center in New York, April 4, 2012

Thursday, April 5, 2012

Supreme Court of India issues notice to SpiceJet for deplaning disabled woman



Dear Colleagues,

Please refer to my earlier post on an incident wherein disability rights activist Jeeja Ghosh who was forcibly deplaned from a Goa-bound SpiceJet flight from Kolkatta in February because the pilot felt she was unfit to fly. On Jeeja's petition, honorable Supreme Court of India has issued notices to the Union Government, Airliner and the DGCA.

A bench of Justices Aftab Alam and Ranjana P Desai issued notices to the Union government, the Directorate General of Civil Aviation (DGCA) and SpiceJet on her petition accusing the private airline of subjecting her to traumatic treatment on February 19 and depriving the organizers of her expertise during the international seminar.

"Jeeja Ghosh has experienced similar experience before. In 2008, she was forced to undergo a medical examination before being allowed to board an Indigo flight from New Delhi to Kolkata," the petitioner said and sought an investigation into the incident.

"These acts of discrimination which have left disabled people very upset have continued unabated despite the enactment by the Central Government of clear and binding directives prohibiting discrimination against disabled persons in air transport," said Jeeja.

She requested the apex court to direct "SpiceJet to adequately compensate the petitioner for loss of money, wasted time and the humiliation and trauma suffered during the unsavoury incident".

This case coupled with the uproar in the disability sector has pushed the Government of India/ DGCA too hard to take a swift action against the Airliner and if required amend the Regulations to include penalty clauses, if need be.

The result has been several meetings with the stakeholders and now constitution of another committee to suggest changes in the existing CAR to make it more inclusive and give it more teeth.We hope this would not be another lip service and another rule book to meet defiance rather than implementation that we see with the existing CAR.

The story has been covered by

(a) The Times of India: Cerebral palsy afflicted woman moves Supreme Court, demnads compensation from SpiceJet

(b) The Hindu : Court Notice to Centre, DGCA on deplaning of disabled

(c) The Indian Express: SC notice to SpiceJet for deplaning woman

Motor Vehicle Act 1988 doesn't prohibit PH to convert motor vehicles as invalid carriages

Dear Colleagues,

I had written in detailed earlier in my post titled  "Disabled and Driving - Can both exist together or at the cost of each other? about this issue and host of other issues troubling the disabled persons in India.

An adapted /altered Scooters or an adapted Car with suitable modification like hand brakes and gears provides an easy mobility to a user with orthopedic disabilities.

People with orthopedic disabilities (especially those with Post Polio Residual Paralysis and those with spinal injuries) often prefer a scooter with side-wheels which is an economic mode of transport. Since almost no major company produces such scooters (called an invalid carriage!!!) in India, people with disabilities have to get the fabrication done through local mechanics and fabricators etc.

Registration of modified car/scooter as "invalid carriage" is most difficult
Registering such vehicles and driving license to drive such (invalid carriage) is an uphill task as the rules and law do not specifically provide for this and leaves room for subjectivity and corrupt practices and it leads to exploitation of a user with disabilities at the hands of middlemen and RTOs.

Such an adapted vehicle is registered as ‘Invalid Carriage’ at the whims and fancies of the RTO. To harass the disabled applicants, the RTO often ask the user to produce a sale letter (form 21) of the Invalid Carriage. Now, since no automobile manufacturer in India supply company-fitted scooter with side wheels or produces an invalid carriage, such a sale letter can not be produced. Here starts the harassment to the user and malpractices in absence of laws due to subjectivity available with the RTOs.

Even when the carriage is registered, the user is given a driving license denoting the vehicle number on the license meaning that the user can not drive any other similar vehicle in case the vehicle goes out of order. This necessitates seeking a new driving license each time with a new vehicle (even if the vehicle is similar),

As per the Rule 126 made under Section 52 of the Motor Vehicles Act, 1988 (as amended in 2002) the prototypes of all vehicles including the one for the disabled should be approved by the Pune-based Automobile Research Association of India, otherwise no modifications on any vehicle can be permitted and one has to use a vehicle in the same shape and design as supplied by the manufacturing company. This puts an undue restriction on the persons with disabilities and takes away from them their right to free mobility.

Similar is the case for adapted Cars. Previously, Maruti Udyog Ltd. used to manufacture special type vehicles for handicapped persons with suitable modifications/ attachments. As the requirement of different persons with different disability varies, the modifications/attachments also have to be different. Since the prototype of each model has to undergo the test, under Rule 126 of CMV Rules, the manufacturer has stopped production of such vehicles. Hence it is desirable to allow modifications/alterations of vehicles enabling the handicapped to drive their own vehicles.

In such situations, several of our physically disabled friends who have been using their adapted / modified vehicles for their mobility and living a very active life despite their disability have faced harrassment from the RTOs.

Madras High Court provides a Ray of Hope
However, in the instant case, one C. Paulraj, a disabled farmer who modified a Maruti 800 to suit his needs was refused the registration of the vehicle as "invalid carriage" by the Local RTO. Paulraj had converted leg operated brake, clutch etc to hand operated ones since he can't use his legs for the purpose due to polio.

Justice D Hariparanthaman of Madras High Court has ordered that Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

The Honb'ble Justice clarified that changing the leg operated brake, clutch and accelerator into one of hand operation, would not cause a change in the basic feature of the vehicle and asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

This is a welcome judgement from the High Court and I am sure this would give much needed relief who suffer in silence due to car makers not providing these options in their designs and they are forced to go to local fabricators to get the modifications done.

Here is the news report:

HC raps transport dept for not certifying disabled man’s car

CHENNAI: It is the state's responsibility to make available 'invalid carriages' for the benefit of the disabled, the Madras high court has said, adding that curtailing the mobility of a disabled would amount to perpetuating inequality.

While directing the authorities to issue registration certificate to C Paulraj, a disabled farmer who modified his Maruti 800 to suit his needs, Justice D Hariparanthaman said, "If the mobility of physically-challenged persons is curtailed, it would result in perpetuating inequality and the object of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 would be defeated."

The matter relates to the rejection of Paulraj's request to the regional transport officer of Tirunelveli seeking registration certificate for his new car. Paulrak is paralysed below his hip. He had earlier an autorickshaw modified and duly certified. He then purchased a car, which was also modified and duly certified. The problem arose when the RTO refused to certify his new car, on the grounds that only company-manufactured vehicles, and not modified versions, could be certified.

Justice Hariparanthaman, rejecting the submission, said that the Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

Pointing out that Paulraj had changed the leg operated brake, clutch and accelerator into one of hand operation, the judge said such changes would not cause a change in the basic feature of the vehicle. He then asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.