Tuesday, September 25, 2012

Court of CCPD issues notices to Department of Disability Affairs, GOI

Dear Colleagues,


Even after more than 16 years of the Persons with Disabilities Act 1995, there is no Uniform Guideline for availing scribes and writers by the persons with Low Vision and Blindness. The candidates continue to suffer in absence of such guidelines and are often on the mercy of the institution/ departments  both in the matter of studies as well as employment.

A recent PIL by the undersigned against ICAI for putting forth unreasonable guidelines for blind students was just an example in the recent past of such hardships faced by the visually impaired students/persons. Please see my earlier posts dated 26 April 2012 and 02 May 2012 on the subject. The court did solve the problem with its pro-active Order the same day for visually impaired students of ICAI but how many students and how many times will be able to afford going to knock the doors of judiciary?

In the year 2005, All India Confederation of Blind had also drafted a detailed guideline for the scribe highlighting the issues and shared with the Chief Commissioner Disabilities and the  concerned Ministry. This was also discussed during the annual meeting of the State Commissioner's Disabilities in subsequent year. However, it remained pending for a long time due to inaction of the then Disability Division (now Department of Disability Affairs).

Through a consultative process lead by Score Foundation, over 70 organisations working with the Persons with disabilities in India (especially Low Vision and Blind) to which I have been a party myself, had suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons" and sent to  of Social Justice & Empowerment for their acceptance. However, it seems the Ministry has some other priorities than the every day sufferings of the stakeholders for which it exists.

The Department of Disability Affairs, Ministry of Social Justice & Empowerment is the nodal department to coordinate the implementation of the Disabilities Act but have not acted on the issue in the interest of justice to alleviate the hardships of the stakeholders and sitting over the above guidelines for a pretty long time leading to untold miseries and hardships to the stakeholders.

In an unprecedented manner, the Court of Chief Commissioner Disabilities has issued notice to the sister department i.e. Department of Disability Affairs, under the same Ministry and sought explanation in the following unequivocal words:

"Take this show cause notice and explain as to why the Department of Disability Affairs, Ministry of Social Justice and Empowerment, Govt, of India, should not be directed to finalise, issue & circulate to all concerned comprehensive and uniform guidelines/norms for conduct of all examinations (both academic & recruitment related) as soon as may be keeping in mind, among other things, the suggestions of the complainants; and, pending finalisation, issuance and circulation of such comprehensive guidelines/norms, to circulate to all concerned the proposed guidelines/norms submitted by Score Foundation vide their letter dated 06.06.2012 for persons with blindness and persons with low vision and evolved by several organisations including Score Foundation on or before 20.10.2012 under intimation to this Court. The respondent department's reply should also explain reasons for the inordinate delay in finalisation, issuance and circulation of such comprehensive and uniform guidelines/norms for all persons with disabilities.

The Chief Commissioner for Persons with Disabilities has further directed the respondent Department to appear before the Court of the Chief Commissioner for Persons with Disabilities in person or through a representative (not below the level of Group 'A (Class-l officer) or a counsel well versed with the case and with all the related documents on 02/11/2012 at 3.00 p.m. to present the case unless uniform and comprehensive policy for conduct of all kinds of examinations for all persons with disabilities is duly finalised and notified before that date."

To read/download the Show Cause Notice click here.

I congratulate Mr. PK Pincha, Chief Commissioner for Persons with Disabilities, Govt of India for rising up to the expectations in discharge of his constitutional duties under the law. I am hopeful that the officials of the Disability Division will not take it as an adversorial litigation like many other cases in which they keep defending the Ministry's (in)actions in the Delhi High Court and other forums- issue of sign language interpreter being just one odd example that is being contested by the Ministry for over two years now at the Government's expense!

It is an apathy on the part of the Ministry that the stakeholders- the persons with disabilities continue to suffer and it has to defend cases due to its in-actions in various courts and now face this show cause from a constitutional authority like CCPD. Hope the Department of Disability Affairs will notify the guideline without any delay before the next date of hearing in the court of CCPD i.e. 02nd November 2012.

regards

Adv Subhash C Vashishth



Mumbai HC panel to evaluate the prototype of Accessible Railway Station

Dear Colleagues,

This is further to my earlier post on 29th Jan 2012 titled Bombay High Court directs Railways to be Sensitive to Disabled.

There is some development in the case pending in the Mumbai High Court against the Indian Railways, however, this doesn't seems encouraging as an important member of the High Court appointed panel Mr. Sudhir Badami feels, "The railways should have involved us right at the stage of drawings. I have visited these facilities but they are not up to the mark," 

The Railways have put up a prototype of disabled-friendly low-height booking counters, a separate toilet and drinking water dispensing facility has been set up at Dadar station. 

"If the panel appointed by the high court gives its approval, Central Railway will start constructing similar facilities at other stations," said a senior Railways official. Western Railway has created a such facilities at Bandra Terminus. Currently, there are only six disabled-friendly toilets at 109 local stations in Mumbai. 

This is a result of a petition  filed by the India Centre for Human Rights and Law in the Bombay HC seeking directives to the railways to provide "accessible facilities at stations and on suburban trains"  which is pending adjudication in the Mumbai High Court. 

Delhi High Court directs the private schools to make their schools barrier free & inclusive

Dear Colleagues,

After its earlier order directing all private and government schools in Delhi to appoint Special educators for children with disabilities and provide necessary teaching and learning material, the Delhi High Court, on a petition by Social Jurist has now ordered to make all private schools barrier free for the disabled. 

It was brought to the notice of the court that private schools do not have adequate physical and academic infrastructure for children with disabilities and thus children forced in to these institution continued to face discrimination.

It was pointed out in the petition that there are 2039 unaided recognized private schools (1260 recognized by Directorate of Education (DoE), GNCTD and 779 recognized by MCD) and 258 aided recognized private schools (214 aided by DoE, GNCTD and 44 aided by MCD) in Delhi and most of them do not have the provisions of basic physical as well as academic infrastructure, including Special Educators as required for the education of the children with disabilities; These schools also did not provide barrier free infrastructure to the children with disabilities. This violated Right of Children to Free and Compulsory Education (RTE) Act, 2009 of such children as guaranteed under Articles 14,15,21, 21-A & 38 of the Constitution of India as well as contrary to the provisions of Delhi School Education Act, 1973, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, U.N. Convention on Rights of Child (1989) and U.N. Convention on Rights of Persons with Disabilities (2006).

The bench of Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw while hearing the petition W.P.(C) No.4618/2011 titled  Social Jurist, A civil rights group versus Govt. of NCT of Delhi directed all recognised, aided and unaided private schools in Delhi to appoint special educators and to make their buildings/school premises barrier-free for children with disabilities. The Director of Education has been directed to ensure that the Court Orders were followed and to de-recognise any school that has not made its premises disabled-friendly.

The court has now granted time up until March 31, 2013, to the schools to make their premises barrier-free and to appoint special educators with the next two years.

“Schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for special educators...no school shall refuse admission to children with disability for the reason of not employing special educators or not providing barrier-free access on the school premises,” the court order says.

The court has also clarified that the capital expenditure on making the school building and premises barrier free so as to allow free movement to children with disability has to be incurred by the schools from their own coffers and is not reimbursable by the Government as Section 19 of the RTE Act requires all schools, as a condition for their recognition, to provide a barrier free access in their buildings.

The Court ordered that the schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises. 

It may be pertinent to mention here that earlier a Division Bench of the Delhi High Court in matter Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489 had directed the GNCTD as well schools run by local bodies namely NDMC, MCD and Cantonment Board to ensure that each school shall have at least two special educators and that necessary teaching aids and reading materials are provided to children with disability. However, this did not cover the Private schools.

Those who want to go through the detailed order, Click here. W.P.(C) No.4618/2011

Media Coverage


regards
Adv Subhash Vashishth

Friday, September 14, 2012

Railways submits Scheme for Online Concessional Rail Ticket booking for persons with Disabilities to Delhi HC [Judgement Included]

Dear Readers,

The present case challenged the discriminatory policy of Indian Railways that denied the persons with disabilities right to book railway tickets online while the same service is readily provided to other persons. Case was successfully fought by Mr. Pankaj Sinha, an advocate with visual impairment with Human Rights Law Network.

The petition pointed out that whereas senior citizens could book their railway tickets at concessional rate on the internet as mentioned in the policy, persons with disabilities could not avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centers.

Petition challenged the existing rules of Indian Railways and sought parity in extension of benefits that are currently available to senior citizens. The lawyer for the petitioner argued that denying such benefits violates Article 14 of the Constitution of India and also contravenes the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as well as the decision in Satyawati Sharma v. Union of India, AIR 2008 SC 3148.

Respondents argued that if such a service were offered, it would be abused.  It is pertinent to mention that the Railway Administration has already issued a warning  that if a concession certificate is obtained without meeting the required parameters, an enquiry can be launched as to how the person obtained that ticket. Additionally, the original documents that substantiate the plea of disability are required to be produced upon examination.

The policy for online ticket booking of senior citizens said- "In case of tickets booked through internet no concession is permitted except senior citizen."

Thus, as per this impugned policy, a person with disability was not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

In response to the petition, the Railway Board, Ministry of Railways, Government of India were forced to prepare broad outline as under :-
• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility. • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities. • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms. • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification. • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

Subsequently, the Govt. of India has earmarked suitable budget for implementing the above scheme. 

Judgement dated 12 Sep 2012 in W.P.(C) 2145 OF 2011 titled Praveen Kumar G vs Union Of India and Ors. 


Text of the Judgement


IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 2145 OF 2011

 Judgments Reserved on:22.8.2012
 Judgment Delivered on:12.09.2012


PRAVEEN KUMAR G                                    . . . PETITIONER
Through : Mr. Pankaj Sinha, Advocate.

                                 VERSUS

UNION OF INDIA and ORS.                               ... RESPONDENTS

Through: Mr. Rajeeve Mehra, ASG with Mr. R.V. Sinha, Mr. R.N. Sinha, Mr. Ashish Virmani, Advocates for UOI.

CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE:

1. This petition filed in public interest by a blind person alleges, in this petition the discrimination between disabled persons and senior citizens in the Policy of IRCTC which provides facilities and services for issuing the railway ticket on internet, or at the reservation counters. It is pointed out that whereas senior citizens can book their railway tickets at concessional rate on the internet as mentioned in the policy, disabled persons cannot avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centres.

2. The policy of senior citizens is as under:-
"In case of tickets booked through internet no concession is permitted except senior citizen." Thus, a person with disability is not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

3. The petitioner filed an application under Right to Information Act, 2005 to the Public Information Officer of the Indian Catering and Tourism Corporation limited on 18.9.2009 seeking information for travel concessions for completely blind persons on the website of IRCTC. The said application was replied by the IRCTC on 12.10.2009 stating that the travel concessions for blind persons for online ticket booking is a policy matter and needs to taken up by the Ministry. Hence, IRCTC shirked off its responsibility from this vital issue and no initiative was taken by the same regarding introducing the system of online ticket booking at concessional rate. The petitioner filed a representation to the Railway Board dated 3.6.2010 requesting the facility of concessional booking of tickets on IRCTC to be extended to the handicaps as is already done for the senior citizens. The said representation was replied by the Railway Board on 13.9.2010 stating that the concessional booking of ticket on IRCTC website has been extended where the physical document is not required to be submitted in advance as it might lead to misuse of the electronic reservation slip and hence, handicaps are not allowed to do the same. It is submitted that no effort has been made by the Ministry of railway to make the policy disabled friendly and have arbitrarily denied the facility to them. The Policy of IRCTC was formulated to provide as a feature to the public at large. Later, the internet ticket booking facility was introduced at concessional rates for the senior citizens. The said policy is formulated and issued by the Railway Board, which is under the Ministry of Railway. Thus, the said policy is exclusively for the public at large and the same is highlighted as the sole Eligibility Criteria on the website of the said department except the senior citizens, who are entitled for ticket booking through internet at concessional rate.

4. The submission of the petitioner is that the persons with disability cannot access this concession facility though provided to senior citizen and, therefore, it amounts to discrimination qua the disabled persons. With this, though the concessional facility is required, it cannot be effectively availed. It is submitted that the system of online ticket booking helps to save time and resources and also help the public at large to avoid long queue at the reservation counter. The said system has also helped the system of ticket booking more accessible and easy to handle. In this context it would be pertinent to mention that such a system for ticket booking would be magnanimously useful and beneficial for the persons with disability for whom the reservation counter in most of the occasions is inaccessible. The petitioner therefore calls for amendment to the Policy.

5. Notice in this petition was issued. Initially, the respondent filed the counter affidavit contesting the petition, pointing out the difficulties which may face by introducing this facility for disabled persons as well. The main apprehension of the Railways is that it may lead to misuse. Since it is a matter in public interest and not adversarial in nature and the intention was to find a solution, when it came up for argument on 21.12.2012, Mr. Chandhiok, learned ASG took time to enable the respondent to have a re-look in the matter and to find a solution as to who the facility of online ticketing with concession could be available, at the same time, scheme be devised that it prevents any misuse. Thereafter, the Railway Board, Ministry of Railway, Government of India prepared broad outline and placed before us. These are as under:-

  • A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility.
  • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities.
  • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms.
  • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification.
  • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

6. The petitioner has filed response to the aforesaid Draft Scheme dated 3.8.2012. Attempt is made to show that there can be a better system, as suggested by the petitioner, without any misuse. Since it is for the Government to devise the procedure and system and it is making endeavour in this behalf, we direct the respondents to take into consideration the suggestions given by the petitioner in its response dated 30.8.2012 and on that basis, further amendments in this scheme that may be feasible can be carried out. Mr. Rajeeve Mehra, learned ASG appearing for the Government submitted that there is always scope for improvement and these suggestions will be taken into consideration. The Railway Board can deliberate on these suggestions and come out with further recommendations if so required in the Draft Scheme suggested by it. If the petitioner still feels aggrieved, he is given liberty to approach again.

7. Writ petition stands disposed with these directions.

ACTING CHIEF JUSTICE                                                     (RAJIV SAHAI ENDLAW)
                                                                                                  JUDGE
SEPTEMBER 12, 2012 

Thursday, September 6, 2012

Delhi High Court directs Private Schools to appoint 2 special educators

Dear colleagues,

Division Bench of the Delhi High Court has directed private schools to appoint two special educators to respect the mandate of the RTE Act. The court had already directed the Govt. of Delhi to appoint 2 Special educators in all government schools. This is a welcome step and calls for drastic changes in the way we look at education of children with disabilities.

Here is the news report from the Time of India.


'Special educators must in private schools’
Abhinav Garg, TOI



NEW DELHI: Disabled students enrolled in private schools received a unique gift from the Delhi high court on Teachers' Day - special educators.

A division bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed all private unaided schools in the capital to hire two qualified special educators as per the mandate of the Right to Education Act (RTE).

The bench made it clear that special educators are required not just in government-run or aided schools but should also in private schools as they too enroll disabled students with special needs. HC was hearing a plea by civil rights organization Social Jurist which sought to extend appointment of special educators to private schools.

The court has already directed the government schools to appoint special educators for disabled children in 2009. It re-iterated the ruling earlier this year while hearing a contempt plea against the government for its failure to fill up vacancies for special educators.

The PIL, filed through advocate Ashok Agarwal, highlighted that 2039 unaided private schools and 258 aided schools lack basic physical and academic infrastructure, including special educators for those suffering from blindness, hearing impairment or mental retardation. "The failure on the part of these unaided and aided schools to have these facilities in place violates the fundamental and human right to education of the children with disabilities as guaranteed to them by the Constitution, RTE Act (2009) and UN Convention on the Rights of the Persons with Disabilities (2008)," the PIL had argued.

On its part, the state government agreed with the need to have special educators and said all the unaided private schools of Delhi are required to make provisions for special educators for children with special needs. Earlier HC had directed the action committee of unaided private schools to file affidavit explaining about their position on recruitment of special educators, availability of provisions of ramps and special toilets etc. for the children with disabilities.

Source: Times of India