Monday, May 21, 2012

Deaf and Speech Impaired can be Key Witnesses in Criminal Trial : SC

Dear Friends,

I firmly believe that exposure and practice can make you aware of things you wouldn't have ever believed or done. If you remember the much hyped Driving Licence for the Hearing Impaired case that I updated earlier on this blog several times on  20 September 2009,  09 November 2009 and 15 February 2011,  Hon'ble Justice Dipak Misra, then Chief Justice at the Delhi High Court headed the bench that heard the case. In the instant case, the deaf were declared competent to drive the private vehicles if they cleared the driving test like any body else by the Hob'ble Court.

Subsequently Chief Justice Dipak Misra  was elevated to the Hon'ble Supreme Court. The learnings from the above Deaf Driving case found their reflection in the judgement below that was pronounced by a bench of Justice B.S. Chauhan and Justice Dipak Misra yesterday (i.e. 21 May 2012) in Criminal Appeal No. 870 of 2007 titled State of Rajasthan Versus Darshan Singh in Hon'ble Supreme Court.

In the instant case the High Court  of Judicature for  Rajasthan at Jodhpur set aside the judgment and order dated 15.1.2003 of the Additional  Sessions  Judge  (Fast  Track)  Hanumangarh, convicting the respondent  of  the offences punishable under Section  302  of  Indian  Penal  Code,  1860 and imposing the punishment to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default to further undergo one month simple imprisonment. This was on the basis of the evidence of the sole eye witness who was speech & hearing impaired and was the wife of the victim. She gave her evidence with the help of her father who acted as her interpreter.

The High Court did not found favour with the evidence of the sole eye witness as the court it raised questions over the competence of the deaf witness and process of recording the evidence and that the father of the eye witness who acted as interpreter was an interested party in the case.

Good points in the Judgement: 

Though I don't agree with the language used to refer to Speech and Hearing Impaired persons- where both our media and judiciary need to sit and take a note of, I am happy that the judgement looks promising and is a step towards progressive realization reiteration from the apex court of India that the deaf or the hearing impaired persons are no less competent when it comes to act as star witness in a criminal case.

Stating that a court can bank on a "deaf and dumb"  (read hearing and speech impaired) as a star witness in a criminal trial, the Justices refereed to Evidence Act that has changed to embrace the scientific fact that such people are "generally found more intelligent and susceptible to higher culture than one was once supposed". Section 119 of The Evidence Act mandates that a person unable to speak can use signs or write his or her testimony, which would be deemed oral evidence, if made in open court.

The court further explained, "Language is much more than words... A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures."  It further observed, "Like all other languages, communication by way of signs has some inherent limitations since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his or her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.


The operative paras of the judgement

"21. To sum up, a deaf and dumb person is a competent witness.   If in the opinion of the Court, oath can be  administered to him/her, it   should be so done.  Such a witness,  if able to read and write, it is   desirable to record his statement giving him  questions in writing and  seeking answers in writing.  In case the witness is not able to read  and write, his statement can be recorded in sign language with the aid  of  interpreter,  if  found  necessary.   In  case  the  interpreter  is  provided, he should be a person of  the same surrounding but should  not have any interest in the case and he should be administered oath."

22.    In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the  help of her father as an interpreter, who for the reasons given by the  High Court, being an interested witness who had assisted during the  trial,  investigation and was  examined without administering oath,  made  the  evidence  unreliable.  In  such  a  fact-situation,  the  High  Court  has  rightly  given  the  benefit  of  doubt  and  acquitted  the  respondent.

24.     We are fully aware of our limitation to interfere with an order  against  acquittal.  In exceptional cases where there are compelling  circumstances  and  the  judgment  under  appeal  is  found  to  be perverse, the appellate court can interfere with the order of acquittal.  The  appellate  court  should  bear  in  mind  the  presumption  of  innocence of the accused and further that the trial Court’s acquittal
bolsters the presumption of his innocence. Interference in a routine  manner where the other view is possible should be avoided, unless there are good reasons for interference.

25.  If we examine the judgment of the High Court in light of the  aforesaid legal  proposition,  we  do not  find it  to be a  fit  case  to  interfere with the order of acquittal.  The appeal lacks merit and, is accordingly, dismissed."


The lacunae in the judgement

No two views are alike and the law presumes innocence unless convicted. However in the instant case my considered view is that the Hon'ble Bench could have also done justice then showing just ways on following three counts:

(a) The Bench presumed that the Deaf Witness Geeta was able to write the telephone number so she was educated enough and could give her evidence in writing. Merely being able to write a phone number doesn't mean the witness could answer in writing and could read and write. The bench may not have been exposed to the kind of education the deaf children get in the country. While they may be able to write or remember telephone number, only a small fragment can write coherent sentences .. such is the state of affairs of the deaf education in Delhi- the capital of the Nation.

(b) If the Judges felt that the evidence wasn't foolproof and was unreliable due to the chances of father acting as an interpreter and also claimed to be an interested party and if there were procedural errors in collecting the evidence by the prosecution, in my considered view,  this was the fit case to be remanded back to the trial court to recollect the evidence keeping the legal formalities of an independent interpreter or re-appreciating the signs recorded at the time of evidence and through in camera recording of the evidence. The sole witness is alive and the Hon'ble court has already declared that she is the star witness and should not be discredited only due to her disability. Today there are enough sign language interpreters who could have assisted the trial court. On the contrary, the Hon'ble court chose to give the benefit of the doubt to the convict who had himself accepted that he killed the victim and it stood corroborated with the entire evidence on record and recovery of the murder weapon at his instance.

(c) The language in the entire judgement refers to the witness as "deaf and dumb" which is not an acceptable noun to refer to a person with Hearing and Speech impairment. The apex court should atleast set precedent in the use of proper language in light of the The Persons with Disabilities (equal opportunities, protection of rights and full participation)  Act 1995 as well as The UN Convention on the Rights of Persons with Disabilities 2006 that Indian is a proud signatory to.


Read the coverage by the Indian Express  today here.

Read the Coverage by The Times of India here.

Regards,
Subhash Chandra Vashishth
Advocate- Disability Rights
subhashcvashishth@gmail.com


Wednesday, May 16, 2012

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost
(b) Age limit of 45 reduced to 18 years to avail pension.
(c) Free vocational training in all 32 districts benefiting 2400 disabled
(d) Cash awad to pursue high education to Hearing impaired students
(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:


Court takes on the role of messiah

MOHAMED IMRANULLAH S

Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Saturday, May 5, 2012

Karnataka HC orders 3 pc quota in PG for disabled doctors in pre-clinical, para-clinical and clinical courses


Bangalore, May 2 2012, DHNS:


The High Court of Karnataka on Wednesday directed the State government to complete the formalities regarding the seat matrix for the Postgraduate Common Entrance Test within three days.

Justice Bhaktavatsala told the government to announce the seat matrix within three days and asked it to provide three per cent reservation to physically challenged doctors during counselling for allotment of seats to eligible candidates in various disciplines of the postgraduate medical courses of the Rajiv Gandhi University of Health Sciences, as per the guidelines issued by the Medical Council of India.

The court was hearing a petition by physically challenged doctors - Veeresh Hallur and Mahajid Pasha - demanding three per cent reservation in the allotment of seats.

The petitioners said that the government had come up with a separate seat matrix, reserving postgraduate medical seats for doctors with locomotor disability in the range of 50 per cent to 70 per cent. They said such a reservation in seat matrix was only to offer seats in least preferred courses. The petitioners sought directions from the court to the government to provide three per cent horizontal reservation to physically challenged doctors in the pre-clinical, para-clinical and clinical courses.

Source: Deccan Herald


Wednesday, May 2, 2012

Delhi High Court strikes down arbitrary Writer / Scribe Guidelines of ICAI

Dear Colleagues,


Please refer to my earlier post titled  ICAI imposes arbitrary Writers / Scribes Conditions for Students with Disabilities to know the background.

In the instant case, the examinees with disabilities of Institute of Chartered Accountants of India (ICAI), who were due to write their exams tomorrow onwards i.e. 03rd May 2012, received  the Admit Card and impugned writer guidelines on 26th April 2012, just days before the examination with weekly holiday in between. Despite the fact that this guideline titled; “Guidelines and Procedure to be followed regarding granting of Writer/ Extra Time to the Differently Abled Candidates” was finalized by the Examination Committee in its January 2012 meeting, the same was never put up on the website while there exist detailed instructions for examinees taking CA exams this year.

The examinees found these guidelines discriminatory and arbitrary and against the settled norms of writer guidelines.  This amounted to discouraging the students with disabilities from appearing in the forthcoming exams. The examinees immediately contacted the Addl Secretary (Exam) who told the candidates that he could not do anything since this was the decision of the Examination Committee taken during January 2012.

The examinees then contacted the author seeking help in resolving this issue so that they could appear in the examination with a proper writer.  It is pertinent to mention that the examinees with disabilities fearing retribution from the ICAI did not want to come out in open against the Institution.  The author also telephonically contacted the Addl. Secretary above, but he only promised that “he will look in to it”.

Sensing the non-serious attitude of the officer, the author immediately filed a complaint before the Chief Commissioner- Disabilities on 27th April 2012 seeking an urgent intervention in view of the exam starting 03rd of May 2012.

The Dy. Chief Commissioner, having verified the facts and the documents on record, immediately sent his order dated 30.04.2012 by email & Fax to the ICAI directing them to remove the unreasonable conditions for the writer to be used by candidates with disabilities and sought an action taken report by email/fax. 

The author has been following up since then with the ICAI but to no avail. The Institute  neither gave any assurance nor  withdrew the impugned guidelines.

Since no student was ready to come forward in open against the mighty Institution set up under an Act of Parliament in 1949 and the second largest accounting body in the whole world, the author was forced to become petitioner in an urgent "public interest litigation" filed before the Delhi High Court yesterday morning praying quashing of the impugned guidelines and staying the examinations/ making proper arrangements for the conducting examinations of persons with disabilities who may be using the writers/ scribes based on the earlier guidelines in the interest of justice. I must thank my associate Pankaj Sinha, a visually challenged lawyer at Human Rights Law Network for arguing the matter before the Hon'ble Court.

The double bench of Hon'ble Chief Justice Shri. AK Sikri and Hon'ble Justice Rajiv Sahai Endlaw directed the Institute to relax all three impugned conditions i.e.
  • Writer to be not more than 20 years, 
  • Only one writer to write all exams and lastly 
  • relative can not write the exams.
The Hon'ble court also verbally asked the media people present in the court to give wide coverage to this issue in national dailies so that it reaches all affected students and their families. 

Respecting the autonomy of the Institution, the Hon'ble Court clarified in its order,  "This order is only applicable for the current examination (May 2012 Exam.) and the Examination Committee of the ICAI  who is meeting to discuss this issue on 13 May 2012 will be entitled to take its own decision after considering the difficulties pointed out by the petitioner in this petition. This petition shall also be placed before the Examination Committee and treated as representation of the petitioner and the aforesaid arrangement made by us for the present examination would not be reflective of any final opinion in this matter."

At the same time, it also addressed the fears of the petitioner by ordering, "We make it clear that in case any amendments in the Guidelines are made by the respondent ICAI pursuant to the recommendations of the Examination Committee and the petitioner still feels aggrieved thereagainst, it would be open to the petitioner to approach the Courts again."

Documents available for Download

I am providing following documents that may come handy for parents, fellow activists and students to take up similar matters of discrimination before various forums.

(a)  Copy of Order of the Chief Commissioner -Disabilities in   PDF File.

(b)  Copy of the PIL Petition to the High Court of Delhi (Brief)  in PDF File 

(c)  Copy of the Judgement of the Hon'ble High Court in PDF File

Reflections of Stakeholders

Since morning I have been receiving thank you messages from parents, relatives, students, NGOs for this relief from the court of Hon'ble Chief Justice. Many parents while talking to me on phone broke down and expressed that they were feeling very helpless since they couldn't do much against the Institution in such a short span when three days before the exam it hands them such whimsical guidelines aimed at discouraging their wards to appear for the exams. I want to say to all such parents, affected persons not to accept injustices quietly. Please raise your voice. We have a very supportive Chief Commissioner- Disabilities as well as Judiciary (High Court) to ensure that justice is rendered to the needy, provided their doors are knocked in time.

Acknowledgments

I want to take this opportunity to thank  Shri TD Dhariyal, the Dy. Chief Commissioner- Disabilities and his desk officer Shri. Rajeev Malhotra, for being prompt in verifying the matter and issuing an immediate order to the ICAI and constantly following up the matter at my request. I also want to thank Mr. Pankaj Sinha, from HRLN for mentioning this matter out of turn before the Hon'ble Chief Justice at my request and then arguing the matter before the court successfully.

Media Coverage




HC asks ICAI to relax norms for disabled
TIMES NEWS NETWORK 

New Delhi: The Delhi high court on Wednesday directed the Institute of Charted Accountants in India (ICAI) to relax conditions for disabled candidates appearing for the CA examination that began on Wednesday. 

 While hearing a PIL seeking quashing of fresh guidelines of the ICAI for the examinees with disabilities appearing for this year’s CA examination, a division bench of acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed the institute to allow a relative of a disabled candidate to act as a writer during the examination. 

The court, however, said the writers for disabled students should not be from commerce background. In its order, the court also directed ICAI, which conducts the examination, to allow the examinees to change the writer throughout the examination that will last till May 17. 

Making it clear that this court’s order is only for this year’s examination, the bench asked the Examination Committee of ICAI to consider the issue and make necessary amendments in the guidelines for the examinations in future.

Other Coverage:












High Court rejects the contention that persons with 70% disability only eligible for reservation


The Hindu,  MADURAI, May 2, 2012

Rejects contention that those suffering from over 70 per cent of disability alone were eligible for reservation

The Madras High Court Bench here has disagreed with the contention of the Director of Teacher Education, Research and Training that only those suffering from more than 70 per cent of disability were eligible to claim three per cent reservation meant for the physically challenged in gaining admission into teacher training institutes.

Allowing a writ petition filed by P. Senthil Murugan, a candidate who suffered from orthopaedic disability assessed to be 40 per cent, Justice D. Hariparanthaman wondered how the Director could insist on 70 per cent disability when the officer was not able to substantiate his claim either through a statutory prescription or a government order passed to that effect.

The judge pointed out that Section 2 (t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, described a ‘person with disability' as the one who was suffering from not less than 40 per cent of any kind of disability (including blindness, low vision, leprosy-cured, hearing impairment, loco motor disability, mental retardation and mental illness) as certified by a medical authority.

Further Section 33 of the Act makes it mandatory for the government to reserve not less than three per cent of vacancies under the physically challenged quota. Of the three per cent, one must be reserved for those suffering from blindness or low vision, one for those suffering from hearing impairment, and the third for those suffering from loco motor disability or cerebral palsy.

Therefore, there was no justification in denying admission to the petitioner in the teacher training institute on the ground that he did not suffer 70 per cent disability, the judge said. He also rejected yet another contention raised by the Director that Mr. Senthil Murugan had secured only 44 per cent of marks in the qualifying examinations as against the minimum requirement of 45 per cent.

Mr. Justice Hariparanthaman pointed out that the government in May, 2010, had granted exemption to two physically challenged students who had secured only 41.33 per cent and 44.75 per cent marks in the qualifying examinations. A similar benefit could be given to the present petitioner too, he said and ordered the DTE to approve the petitioner's admission.

The petitioner had initially filed a writ petition in 2005 seeking relaxation of the minimum requirement of 45 per cent marks. That petition was disposed of with a direction to the government to consider his plea. Thereafter, he filed another writ in 2009 with a similar plea and the court passed a similar order once again along with a rider that his plea must be considered within four weeks.

After this, he gained admission in a private teacher training institute at Kalayarkoil in Sivaganga district. But the DTE refused to approve his admission and hence the present writ petition. He had also written the semester examinations on the basis of interim directions issued by the court from time to time in the present case.

Keywords: physically challenged student

Tuesday, May 1, 2012

Mother's International School fined Rs. 10,000 for refusing admission to a deaf child & ordered to provide free education until 18 years [Judgement Included]

 Dear readers,

Master Araav Porwal, a student with disability (hearing impairment) had applied for admission in the Mother's International School in January, 2010 and indicated the child had a disability. However, the list released by the Mother's International School did not feature the child's name. 

The child’s father requested the school vide his letter dated 20.01.2011 to the School Principal asking him to consider admitting the child under the category of “Disadvantaged Group” but School didn’t respond. 

When the child's father did not receive any reply, he wrote another letter to the Director and the Principal, bringing to their notice, the Notification dated 07/01/2011 issued by the Education Department of NCT of Delhi called the Delhi School Education (Free seats for Students belonging to Economically Weaker Sections and Disadvantage Group) Order, 2011.  The petitioner waited for a while, but did not receive reply from the authorities. 

Later, the reason, the school gave for this decision was lack of a special teacher/educator for the child and the fact that they had not handled such children so far.

On 08 Mar 2011, the father took up the matter with the Commissioner (Disabilities), Govt. of NCT of Delhi  who passed an Order dated 07 April 2011 instructing the school to admit in The Mother's International School. However, the school failed to respect the said order taking an obdurate stand that the provisions of the Act were not applicable to unaided private schools.

The petitioner thus filed a writ petition in the high court of Delhi, through Mr. Pankaj Sinha, Advocate of HRLN, for enforcing the order of the Commissioner for Persons with Disabilities regarding the admission of the petitioner Master Araav Porwal in the Mother's International School. 

Finally on 30 April 2012, the Hon’ble court presided by Justice Hima Kohli in its judgement not only directed the Principal as well as the school to give admission to the petitioner in class 1 of the school and provide the student education free of cost until the age of 18 years in light of the Persons with Disabilities Act 1995 but it also imposed the cost of Rupees 10,000 on them for delaying