Friday, December 12, 2014

Deptt of Ex-Servicemen Welfare gets another rap from Supreme Court for denying benefits to disabled Soldiers


Written by Utkarsh Anand | New Delhi | Posted: December 12, 2014 9:52 am

“They are in the line of fire. They sacrifice their life for you and for us. This is the least you could do for them.” It was the message by the Supreme Court to the Centre, which was fighting against the ex-servicemen of Army over a modest increase in their disability pension.

Coming to the rescue of around 15,000 soldiers, the court rejected an appeal by the government against an order of the Armed Forces Tribunal (AFT), which had extended the benefits of an extra amount in their pensions on account of disability due to service conditions.

On Wednesday, a bench led by Chief Justice of India H L Dattu expressed its disgruntlement over the government’s insistence on denying the benefit to the soldiers on the ground that it would burden the exchequer with an additional Rs. 1500 crore.

“So what? The government can have at least this much of budget for its soldiers who are dying for the people of this country everyday. What is the point of having these memorials and placards saluting our defence personnel if you litigate agianst the disabled soldiers till the Supreme Court. You should pay them,” said the bench, also comprising Justices Madan B Lokur and A K Sikri.

With the writing on the wall, the government’s law officer chose not to argue the appeal further and said they would comply with the order. The bench disposed of around 880 appeals against the AFT order on this issue.

Among those who will be benefited by this order is also Army’s former Vice-Chief Lt Gen Vijay Oberoi, who lost his leg in a gun battle in the 1965 Indo-Pakistan war. Oberoi soldiered on without any financial benefit whilst in service but was categorised as 70 per cent disabled when he retired as the army’s vice chief in 2001.

When the 5th Pay Commission enhanced this to 75 per cent, the Ministry of Defence (MoD) refused to pay. On Oberoi’s petition, the Chandigarh bench of the AFT, in 2010 allowed “broad-banding” benefits to all disabled personnel irrespective of when they left service.

Under the “broad-banding” policy, three bands were to judge disability across the board. Up to 50 per cent disability, a person was to be given the benefits of a 50 percent disability holder; a person with 51-75 per cent disability was to be given 75 per cent disability benefits; while a person with 76-100 per cent disability was to be given 100 per cent disability benefits. The policy was introduced to avoid subjectivity and variance in calculating disability percentage.

This broad-banding was accepted and implemented by the MoD but the benefits were granted to only those who were removed from service by the government on medical grounds, and not to those who retired after their full service. The AFT removed this anomaly and held that all the soldiers shall get the benefit under the policy.

The Department of Ex-Servicemen Welfare (DESW), which comes under the MoD and looks into the grievances and other pension matters of retired defence personnel, filed an appeal against the AFT judgement in February 2012 despite an adverse opinion by the Army Headquarters.



Friday, October 10, 2014

Chief Commissioner Disabilities directs UPSC to withdraw discriminatory performa

UPSC asked to withdraw ‘discriminatory proforma’

The Court of Chief Commissioner for Persons with Disability has directed the Union Public Service Commission (UPSC) to withdraw its “discriminatory performa”. It has directed the UPSC to refrain from asking persons with disabilities to submit photographs showing their disabilities and to consider the ‘permanent disability certificate’ issued from a government hospital as a valid proof.

The action comes following an intervention by Dr. Satendra Singh, who has been working in the area of disability rights and had written to the UPSC against “its discriminatory policies”.

“Despite having a valid disability certificate, the UPSC asks all applicants to use their own format for disability certificate. This is against the existing guidelines but nobody challenged the UPSC. Moreover, the format asks applicants to paste ‘photo showing disability’, which is not only discriminatory but also infringement of right to privacy. An example – how can an amputee female attach her photograph?’’ asked Dr. Singh.

He added that in a follow-up to his complaint, he also quoted the Amended Persons with Disabilities Rules 2009, which were circulated to all the Ministries/Departments (Rules 3 to 6 of Chapter II relating to Disability Certificate as per Ministry of Social Justice and Empowerment’s notification in November 2013.

“The amended rules show the format to be used for disability certificate and none of them asks ‘to showcase disability’,” said the physician.

He further pointed out that Rule 6 of the same order clearly states that a certificate issued under Rule 4 is to be generally valid for all purpose. “When a person already has a valid government certificate of permanent disability why does he have to get his disability certificate again in the prescribed form of the UPSC?’’ questioned Dr. Singh.

Source: The Hindu


SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well

Dear Colleagues,
The observations of a 3 member bench comprising Hon'ble Chief Justice R.M Lodha,  Mr. Justice Kurian Joseph and Mr. Justice Rohinton Fali Nariman on 12 September 2014 while hearing a fresh appeal titled Union of India and Others Versus National Confederation for Development of Disabled and Anr speak volumes about the attitude of the bureaucracy towards implementing reservation in jobs for persons with disabilities. The matter was widely reported in media. Appended towards the end of the posts are the two major coverage by PTI and Indian Express on the subject for your ready information.

I have been receiving several requests from several Government officials including State Commissioners for Persons with Disabilities, Stakeholders and friends in the NGOs to write a brief on the judgement, hence this post. 

For some strange reasons, the bench though dismissed this appeal arising out of a Bombay High Court judgement dated 04 Dec 2013 in PIL No. 106/2010, but did not record their reasons for dismissing the appeal perhaps to save the Union Government from further embarrassment. What appeared in the media was thus obiter dicta. i.e. what the Hon'ble Chief Justice commented during the hearing in the court. This did not come in the formal written order. For benefit of readers, you may see the Order dated 12.09.14 by clicking here (Word Format /  PDF Format)

In the instant case at Bombay High Court, the  petitioners National Confederation for Development of Disabled had prayed for writ of mandamus to direct the respondents to appoint the disabled persons in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) in Indian Administrative Services posts to be filled up either by promotion from the State Civil Services or by selection from persons who hold gazetted posts in connection with the affairs of a state but are not members of the State Civil Services, as per their entitlement retrospectively from 1996 and to comply with the said provisions hereafter.

In this regard please refer to my earlier blog entry titled Physically challenged versus Logically Challenged dated  10 Dec 2013 wherein I had also posted the Judgement for ready reference. The same can be accessed by clicking link below:

Judgement of Mumbai High Court in PIL 106/2010 titled National Confederation for Development of Disabled and Anr Versus Union of India and Ors. (PDF file that will open in a new window). Also available on High Court website.

Thus in nutshell, the Hon'ble Supreme Court has upheld the above Judgement of the Bombay High Court meaning thereby that the reservation provisions of Section 33 will extend to all appointments in all groups i.e. A,B,C and D and appointment is not restricted to direct recruitment only. It would also include promotion, deputation etc. 

I had in my research work carried out in 2008-09 for HRLN  which later became a part of a book titled "Harmonizing Indian Domestic Laws with UNCRPD"  I had indicated that the reservation for persons with disabilities is to extend to all form of appointments however, the babus of the DoPT and MSJE continue to force upon the limited interpretation of the provisions. I am glad that the Hon'ble court subsequently upheld it in this above matter. I hope this broad interpretation - the will of the legislature while enacting the disabilities Act 1995  - will be preserved in the new draft Disabilities Act as well.

regards
Subhash Chandra Vashishth
Advocate


News Coverage

SC clears 3% reservation for disabled in jobs, promotions  (Indian Express)

Written by Utkarsh Anand | New Delhi | Posted: September 12, 2014 5:44 pm | Updated: September 12, 2014 9:59 pm

The Supreme Court on Friday ruled in favour of three per cent reservation for differently-abled candidates in civil services, not only at the stage of their  appointments but also for departmental promotions.

Giving a level-playing field to more than four crore people with disabilities in India, the apex court held that the Centre, states and Union Territories were obligated to implement the rules of reservation for this class in the matters of appointment, selection, direct recruitment, deputation and also for promotions. It asked the Centre to show a big heart and give the differently-abled people their due in all central and state government jobs.

A bench led by Chief Justice of India R M Lodha reiterated its earlier verdict that the principle of not exceeding 50 per cent reservation would not be applicable while granting quota for differently-abled people.

The bench expressed its displeasure at the government seeking to adopt a hyper-technical approach, as its counsel pressed that three per cent reservation could be given only at the stage of appointment but not for promotion. The Persons With Disabilities Act provides for three per cent quota for the differently-abled people.

“Appointment will include promotion. You are frustrating the very reservation policy for the disabled — the class for which this beneficial piece of legislation was enacted, by arguing against it,” the bench, also comprising Justices Kurian Joseph and Rohinton F Nariman, told Additional Solicitor General Pinky Anand.
Anand sought to point out that the reservation at the stage of promotion may lead to huge resentment, especially among employees in Group A and Group B categories, since many beneficiaries may get ahead of their seniors.

She was placing an appeal against the Bombay High Court order, directing the government to implement three per cent reservation for the differently-abled in civil services recruitment, besides granting the benefit in the matter of promotion too. This order was issued on a PIL filed by the National Confederation for Development of Disabled, which was represented by senior advocate R S Suri and Arpit Bhargava in the apex court.

The bench, however, told the Additional Solicitor General that the objective of the reservation policy, as envisaged by Parliament, was unequivocal that the differently-abled people must get the benefits without technical impediments.

“Once Parliament prescribes for reservation in appointments, it will cover direct recruitment, promotion and even deputation. Our experience tells us that it is one legislation that has never been effectively implemented. In any case, it is a beneficial legislation and you should interpret in a manner so that they get the benefits,” said the bench.

At this, the Additional Solicitor General agreed with the bench and conceded not to press the appeal any further. The court then dismissed the appeal. The three per cent reservation, as clarified by the apex court in its last year’s judgment, is to the extent of one per cent each for the blind, hearing and speech impaired, and persons suffering from locomotor disability or cerebral palsy. The Supreme Court had in October last ruled in favour of a minimum three per cent reservation for them in all central and state government jobs. Regretting the denial of opportunities to the differently-abled people in the country, the court had quashed the Centre’s 2005 office memorandum and the government’s claim that the reservation policy not only had to be different for Group A, B C and D posts but the quota had to confine to “identified” posts. 

Source: Indian Express

3% quota must for disabled people in all govt jobs including IAS: Supreme Court
PTI | Sep 12, 2014, 06.17PM IST

NEW DELHI: The Supreme Court on Friday held that three per cent reservation for disabled people be given in all categories of government jobs including in appointments and promotions to IAS, while pulling up the Centre for "blocking" the very purpose of this empowering legislation by opposing it.

A bench headed by Chief Justice R M Lodha said that people with disabilities have not got their due in the last 19 years despite the framing of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was passed in 1995.

Additional solicitor general Pinky Anand, appearing for the Centre, contended that reservation cannot be given in case of promotion to Group A and Group B officers category as it is not a case of appointment. The bench, however, observed that appointment is a broader concept and the Centre is giving a narrow interpretation of it.

"You are frustrating the very reservation policy and cause of class for which Parliament passed the law," the bench said.

"For the last 19 years it is not being implemented and the class, for which the legislation was made, had not got benefited as it should have," the bench said.

The court dismissed the petition of the Centre challenging an order of Bombay high court which had directed the Centre and the Union Public Service Commission to implement 3 per cent quota in direct recruitment and promotions for the disabled in the IAS.

Source: Times of India 

Wednesday, August 20, 2014

Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014

Dear Colleagues,

Two High Courts - Delhi and Bombay decided against UPSC and DOPT and in favour of Persons with Visual Impairments in two matters filed before these courts challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 as it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995.

The Bombay High Court delivered final judgement ensuring in brief the following:
  • Reservation of 39 for 1291 vacancies not 26 as in the impugned advertisement
  • 13  for Visually Impaired and not 2 as in the impugned advertisement
  • 20 mins time per hour not 10 min. as given in the impugned advertisement
  • Talking calculators for visually impaired candidates wherever general candidates are allowed calculators.
  • Large fonts to be provided on request from the next exam. Not applicable for the Prelims on 24th August 2014.
The Delhi High Court passed an interim order ensuring the following:
  • No stay on the exam as DOPT indicated that they had given 6 vacancies to persons with disabilities, 2 each to the three disabilities act per the Act of 1995 in the IAS. However, DoPT explained it was not the cadre controlling authority on remaining 19 services.
  • 20 Minutes time per hour as against the 10 minutes given in the impugned notification.
  • Court also passed some positive remarks on the powers of Chief Commissioner Disabilities and differentiated the Guideline on scribe have statutory force which could not be overridden by the executive order of the CSE 2014 notification.
  • Asked the UPSC not to disqualify candidates with visual impairments on the grounds of no vacancies.
  • Since no information was available about reservation status in 19 cadres other than IAS, the court also directed UPSC  to ensure proper assessment of number of vacancies reserved for visually impaired candidates in conformity with Section 33 of the Disabilities Act and notify the same before the schedule for Mains examination is fixed.
On Powers of CCPD

Stressing on the powers of the CCPD, the Delhi High Court held that the Chief Commissioner for Persons with Disabilities (CCPD) is an authority appointed under Section 57(1) of the Disabilities Act, 1995 for the purposes of the said Act.   Section 58 of the Disabilities Act, 1995 provided for the functions of the CCPD which included taking steps to safeguard the rights and facilities made available to persons with disabilities.That being so, the guidelines dated 26.02.2013 issued by the Ministry of Social Justice and Empowerment on the recommendation of CCPD apparently for the purpose of safeguarding the rights and facilities made available to persons with disabilities, cannot be treated as mere executive instructions as sought to be contended by the respondents.  Please refer to my earlier blog entry dated 25 Sep 2012 on making these guidelines.

The court clarified that the guidelines dated 26.02.2013 on Scribe issue which are issued for effective implementation of the provisions of the Disabilities Act, 1995, have statutory force and are bound to be implemented by all the departments and authorities.

The court further held that it is no doubt true that UPSC is a Constitutional and independent body, however, the Civil Services Examination Rules - 2014 issued by the Department of Personnel & Training vide notification dated 31.05.2014 which are only in the nature of executive instructions, cannot override the statutory guidelines dated 26.02.2013 issued in terms of the provisions of the Disabilities Act, 1995 to ensure that a uniform and comprehensive procedure is prescribed for conducting examination for persons with disabilities.

To access the interim order of Delhi High Court  click below :

WP (C) 3919 of 2014 titled Sambhavna Versus Union of India and Ors. (Order in PDF Image 11 pages - may not be accessible for screen readers).

Accessible copy of the above Order dated 19 August 2014 is now available.  Please click here: Order dated 19 Aug 2014 in WP(C) 3919 of 2014


To access the Judgement of Bombay High Court click below:

WP (C) 5953 of 2014 titled Sujit Shinde and Anr Versus UPSC and Anr. (Order in accessible PDF and runs in 19 pages)

Media coverage in Indian Express on the issue:

No stay on Prelims, but HC takes up issue of seats for visually impaired

Express News Service | New Delhi | August 20, 2014 3:21 am

Granting relief to Civil Services aspirants, the Delhi High Court has refused to issue a stay on the preliminary exam for Civil Services 2014, but has directed UPSC to look into the issue of reservation of seats for visually challenged persons as per the Persons with Disabilities Act 1995.

The court has also directed that visually challenged candidates will get 20 extra minutes per hour for every hour of the examination in both the Preliminary and Main exams as per the 2013 guidelines given by the Ministry of Social Justice and Empowerment.

NGO Sambhavana had sought a stay on the UPSC preliminary examination, alleging that the allocation of seats violated the provisions of the Persons With Disabilities Act 1995, which clearly reserved 1% seats for visually challenged people, out of a total of 3% reservation for disabled candidates.

The NGO in its plea had also stated that executive rules issued in May 2014 by the Ministry of Personnel and Public Grievances had reduced the time granted to visually challenged candidates to only 20 minutes extra time in the preliminary exam, which also violated the rules made under the Disabilities Act.

The May 21 notification of the UPSC had advertised for 1,291 vacancies, but had specified 26 seats for disabled candidates, with only two seats reserved for visually challenged persons.

The court of Chief Justice G Rohini and Justice R S Endlaw in its order on Tuesday declined to stay the preliminary exam, but directed that none of the visually impaired candidates should be disqualified in preliminary examination on grounds of no vacancies.

Noting that the data on exact number of vacancies had been received only for the IAS cadre and not for the other 19 services, the court has directed the UPSC to “ensure proper assessment of number of vacancies reserved for visually impaired candidates in conformity with 1% reservation provided under Section 33 of the Disabilities Act, 1995 and notify the same”, before the schedule for Main examination is fixed.

“Out of 180 vacancies sought to be filled up in IAS on the basis of Civil Services Examination-2014, six vacancies are reserved for candidates belonging to physically handicapped category, i.e., 2 each for visually impaired, hearing impaired and locomotor disability. Thus, for IAS itself two vacancies are reserved for visually impaired. What is the vacancy position in the other 19 services that are identified suitable for physically disabled category is not known. The counter-affidavit filed on behalf of UPSC is silent on this aspect and no particulars have been furnished about the number of vacancies furnished by the other Cadre Controlling Authorities,” noted the court.

Further, the High Court has pulled up the UPSC for failing to implement the rules made under the Disabilities Act regarding extra time for visually challenged candidates.

CCPD directs Election Commission of India to make its website accessible within 30 days

EC warned to make website differently-abled friendly

New Delhi, August 18, 2014

Pressure from disability rights activists has prompted the Court of the Chief Commissioner for Persons with Disabilities to issue a stern warning and ultimatum to the Election Commission of India (ECI) asking it to make its website user friendly for persons with disabilities.

The ECI has been given a 30-day deadline (from July 31 onwards) to comply and make amends.

Dr. Satendra Singh, a polio survivor and assistant professor of physiology at the University College of Medical Sciences and Guru Tegh Bahadur Hospital, Delhi, who has been pursuing the case said: “The ECI has been directed to intimate the Court of the Chief Commissioner for Persons with Disabilities within 30 days about the action taken on the direction.”

Dr. Singh added that while Delhi has made its website accessible for persons with disability the same has not been made available to the rest of the country.

“The visually impaired need to have a user-friendly website to ensure that they are able to make an informed choice before voting. Though we have been appealing to the ECI since December last year there has been no response from them,” said Dr. Singh.

“Despite my letters, the ECI did not budge and did not make their website accessible to differently-abled voters. There are Prime Minister Office (PMO) orders as well as guidelines whereby all government institutions must make their websites accessible to the differently-abled. However, we are hoping that things will improve now,” said Dr. Singh.

Accusing the ECI of having violated the orders issued by the PMO in 2010, Dr. Singh said: “The current direction by the Court of the Chief Commissioner for Persons with Disabilities we hope will work favourably for the differently-abled and give them the right to vote in a well informed manner.’’

The visually impaired need to have a user-friendly website to ensure that they are able to make an informed choice before voting

Source: The Hindu

Friday, August 8, 2014

Special Educators & Barrier Free Private schools remains a distant dream despite Court Orders

Dear colleagues,

Please refer to my earlier blog entry titled  Delhi High Court directs the private schools to make their schools barrier free and inclusive dated 07th May 2013 detailing the implications of Delhi High Court Judgement in WP(C) 4618/2011.   The Department of Education, Govt. of Delhi has been sleeping over this judgement dated 05th Sep 2012 in the matter titled Social Jurist Versus Govt of NCT of Delhi  [WP (C) 4618/2011](click on the case number to access the Judgement) indicates how serious the government has been on the issues related to the education of the children with disabilities in Delhi.

The government made no efforts to ensure whether the judgement was implemented in its true letter and spirit by the strong lobby of private unaided schools. It only woke up after the matter has been again taken up through another PIL titled Pramod Arora Versus Lt. Governor of Delhi  & others [WP (C) 1225 of 2014] in which the Hon'ble Delhi High Court passed another judgement  03rd April 2014.   (click on the case number to access the Judgement).

Now the Directorate of Education, Govt. of Delhi vide its Notification No. DE-15/Act-I/WPC-1225/2014/25415-25416 dated 04.08.2014 regarding appointment of special educators & making the buildings/ schools premises barrier free to provide access to children with disabilities has directed the Private unaided schools to update the data whether they have made appointments of special educators in their schools or not and whether they ensure barrier free environment in their schools as per the directions of the Hon'ble Court in the above two judgements. A copy of the above notification is pasted below in the image format.



We hope the Govt. will be serious this time to bring the defaulting private unaided schools to book and ensure that the inclusive education becomes a reality.


Media Coverage: Daily Pioneer


Tuesday, 05 August 2014 | SR | New Delhi

After facing the ire of the Delhi High Court, the Directorate of Education (DoE) on Monday issued a notice to all unaided private schools of Delhi to recruit special educators and make their schools premises barrier-free so as to provide movement and access to the children with disabilities. The notice has been issued by the directorate following a mandate by the High Court asking for a compliance report at the earliest.

According to a notice issued by Additional Director of Education Madhu Teotia, the unaided private schools of Delhi must comply with the 2012 order of the High Court which directed the schools to appoint special educators for disabled students.  The court granted time till September 9 this year to appoint these special educators and time till March 2013 to make the school premises barrier-free. The matter of appointment of special educators for the disabled children and other connected issues, have again been agitated before the High Court during the proceedings of another case, wherein, the court directed the department to submit a compliance report with regard to the same along with other related directions,” Teotia said.

The notice also highlights that despite several reminders to private schools, this matter was not taken seriously. Teotia had asked the schools to upload special educators and disabled children related information on a module which has been made available on the Directorate of Education website.

“However, it has been found that most of the schools are still to upload the requisite information on the website. Therefore, in strict compliance, private schools must upload the requisite information regarding disabled children on the department's website on the aforesaid module immediately if not done so already. They should additionally appoint special educators in their schools, if not appointed so far, at the earliest but not later than the time granted by the court. They must also make their building, school premises barrier-free for the disabled children immediately, if not done yet,” Teotia informed.

To ensure complete compliance of the mandate, Teotia has asked all Deputy Directors of Education to monitor this case on top priority as “being a High Court matter even contempt of the court is involved.”

The Deputy Directors of Education are expected to bring the status report in this case on August 6 to a meeting with Director of Education Padmini Singla. They are supposed to also bring along with them the names of the defaulting private schools and initiation of action against such schools. “Non-compliance of the order shall be viewed seriously,” informed Teotia.  
--




Monday, July 21, 2014

A blind candidates wins legal battle to become a judge in Spain

Please refer to my earlier blog entry dated 01st June 2009  titled Can a Blind / Visually Impaired Person work as a Judge / Magistrate ? This was subsequently also posted on 06 June 2009, more than 5 years ago at Changemakers.com titled How can a blind / visually impaired person work as a Judge?

Delighted to learn that after a protracted battle, the Spanish Court has ruled in the favour of a visually impaired law graduate Mr. Pérez Castellanos’ restoring his equal right to become a Judge like his fellow law graduates.

An online petition on Change.org collected more than 100,000 signatures in support of Pérez Castellanos’ legal struggle.

Blind man wins battle to become judge
Photo Courtesy Change.org

Here is the news published in The Local:

Blind man wins battle to become judge

Published: 14 May 2014 11:49 GMT+02:00

Spanish legal authorities have ruled in favour of a blind 23-year-old law graduate who called for people with his disability to be allowed to become judges.

“Can a blind person like me carry out the work duties of a magistrate?” was the question sent by Gabriel Pérez Castellanos to the official body days after completing his Law degree in July 2013.

Ten months on and several adjournments later, Pérez Castellanos finally got the response he was hoping for.

Spain’s General Council of the Judiciary ruled unanimously on Tuesday that blind people can access state entrance exams to qualify as judges even though their job responsibilities may have to be adapted to suitable cases.

According to the report, evidence used in court that "can only be assessed with one’s eyesight" is limited and "not enough to completely rule out blind people from a career in the judiciary".

"I'm very happy, of course," the young man told The Local.

Having scored 7.9 in his Law degree (equivalent to a First Class Honours degree in the UK), Pérez Castellanos is now completing a Master’s degree at Garrigues, Spain's biggest law firm.

"The plan is to focus on labour law," he said of his future plans.

And while the budding lawyer admitted it would be more difficult for a blind  person to be a judge — as would be the case for many professions — he thought none of the challenges were insurmountable. 

"The main task of judges is to make decisions based on their knowledge of the law," he said.

Pérez Castellanos told the Local doesn't view himself as a spokespeson for blind people but admits he had been amazed, and delighted, by the repsonse to his situation. 

Online petition website Change.org collected more than 100,000 signatures in support of Pérez Castellanos' legal struggle.

Brazil, France, Peru and the UK already employ blind judges as stipulated in the UN's Convention on the Rights of Persons with Disabilities. 

Source: The Local

Wednesday, July 16, 2014

Should a person in vegetative state be forced to live on?

Can a man on deathbed be forced to live on?

Dhananjay Mahapatra,TNN | Jul 16, 2014, 05.21 AM IST

Supreme Court on Tuesday took up the adjudication of the emotive issue of permitting removal of life support system from a person on deathbed if doctors unanimously agree that there is no chance of survival.

NEW DELHI: The Supreme Court on Tuesday did not shy away from taking up for adjudication the emotive issue of permitting removal of life support system from a person on the deathbed if doctors unanimously agree that there is no chance of survival. 

Petitioner 'Common Cause' has sought judicial sanction for the process where a person, who has 'willed' in sound health and mind that if he ever slips into a vegetative state in future and doctors feel that he has zero chance of survival, he should not be kept alive with the help of a ventilator. 

A five-judge constitution bench of Chief Justice R M Lodha and Justices J S Khehar, J Chelameswar, A K Sikri and R F Nariman was willing to refer the matter to the Law Commission of India for gathering expert opinion and public view before giving its recommendation to the Centre. 

But solicitor general Ranjit Kumar pointed out to the court that the commission, by its 241st report submitted to the government on August 11, 2012, had given a draft — Medical Treatment of Terminally-ill Patients (Protection of Patients and Medical Practitioners) — which did not agree with the concept of 'living will'. 

The commission, after the apex court judgment in Aruna Shanbaug case in 2011, had reversed its earlier opinion and recommended medically guided passive euthanasia for terminally ill patients after putting in place a series of safeguards. 

However, in the recommended draft bill, the commission had said, "Every advance medical directive (called living will) or medical power-of-attorney executed by a person shall be void and of no effect and shall not be binding on any medical practitioner." 

In 1994, a two-judge bench of the Supreme Court in P Rathinam vs Union of India had struck down Section 309 of IPC (attempt to suicide) as unconstitutional, saying right to live with dignity allowed the person to die with dignity. 

However, a constitution bench of the apex court in 1996 in Gian Kaur's case reversed the 1994 decision saying right to life did not include right to die. However, it had sparked a debate on passive euthanasia by observing that it could be permitted only if the legislature enacted a law authorizing it. 

The March 7, 2011 verdict in Aruna Shanbaug's case relied on observations in Gian Kaur's case to permit passive euthanasia. This was followed by Law Commission's recommendations. 

Attorney general Mukul Rohatgi said the issue before the court in Gian Kaur case was whether suicide was legally permissible and the observations relating to euthanasia were wrongly made. "It is a complicated, emotive, socially sensitive and legally intertwined issue that needs to be examined carefully on the touchstones of Constitution," he said. 

The AG said such a huge issue could not have been decided by the apex court in Aruna Shanbaug's case just by hearing the Union government and a party concerned. The bench appeared to agree with the suggestion for a wider debate and told the NGO's counsel Prashant Bhushan that it would surely need response from state governments and concerned players. 

The court too had its doubt whether any person could be legally entitled to execute a will for deciding the manner in which he should die. "Would it not amount to an indirect suicide? Would the doctor advising removal of life support system be not liable for abetting suicide," the AG asked. 

The bench asked Bhushan to inform the court about the course of action to be adopted on this issue - whether the issue be referred to a larger bench of seven or nine judges or seek response from the states.


Tuesday, June 10, 2014

PIL Effect - Police Installs auditory devices at 57 traffic lights in Delhi

As a result of a PIL pending in the Delhi High Court, the Delhi Traffic Police informed the Delhi high court that they have installed 57 auditory devices at traffic signals in the capital for safety of visually impaired people.

In his reply, filed before a bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw, deputy commissioner of traffic police also informed that 35 more locations have been identified for providing auditory signals.

"... Traffic police has provided 857 traffic signals and 401 traffic blinkers all over Delhi for ensuring smooth flow of traffic and safety of pedestrians and other road users. A total of 57 traffic signals have been provided with auditory devices for the safety of visually handicapped persons. In addition, 35 locations have also been identified for providing auditory signals," the reply filed through Rupinder Kumar, deputy commissioner of traffic police, said.

"Besides... on roads where there is continuous flow of traffic, 22 pelican traffic signals and 36 pedestrian traffic signals are functional which have the facility to provide adequate time in the signal cycle to pedestrians for safely crossing the roads. Additionally, 96 signals with pedestrian aspects have been installed and it is envisaged to provide pedestrian aspects on nearly all the signals," the official said.

The police's reply came after the court in March had issued notice to the Delhi government and civic agencies on a plea seeking direction to provide parking space to the physically challenged near the entrances of public buildings in line with the Master Plan Delhi 2021. The bench had also asked the traffic police, police commissioner and DDA to file responses.

The DCP also said that regular action is taken by traffic police to remove illegal parking. He added that the traffic police prosecuted 7,10,025 people in 2013 and 2,96,232 in 2014 till April 30. The official also stated that action is also being taken against second-hand car dealers, who are causing encroachment on the roads of the capital.

The official said that the department had launched a special drive on May 6 in coordination with the civic agencies for removal of encroachment "on specially identified 11 vital corridors in the NCT of Delhi, in which 567 encroachments have been removed, action has been taken against 180 vendors, 159 vehicles have been towed away, 1047 vehicles have been challaned and 145 notices for obstructive parking have been issued. The drive shall continue on a regular basis".

A PIL filed by social worker Vinod Kumar Bansal, through advocates Anupam Srivastava and Sitab Ali Chaudhary, had sought the court's direction to the Delhi government and civic agencies to install auditory signals at red lights on public roads for physically handicapped people. The plea further sought directions to make pavements wheelchair-friendly.



Source: Times of India

Thursday, May 22, 2014

After Contempt petition, Deptt of Education, Delhi notifies nursery seats for children with disabilities

Please refer to my earlier posts titled  Disability angle in Nursery admission norms - HC issues notice to centre dated 26 Feb 2014 and Child with special needs distinct from disadvantage group under RTE dated 04 April 2014 on the subject. 

The Directorate of Education has finally notified the  high court order on the admission of disabled children into nursery. The circular directs 51 private unaided schools "to reserve at least two seats for the 'children with special needs' (CWSN) in their schools in nursery class for the academic year 2014-15".

To access the DoE Notification dated 19.5.2014, click here.  (The notification, the list of schools & the high order though is not accessible to the persons with visual impairment and is a very dim copy.... thanks to lack of sensitization in the DoE). This notification has come after the petitioner-representing a group of parents with disabled children-filed a contempt suit and over a month after the court first ordered DoE to keep seats vacant for this group on February 27.

The circular is not only for the 15 schools mentioned by the high court on May 15, but also says, "other schools as mentioned by the petitioner in the writ petition are also directed to reserve the same number of seats" for the group.

The petitioner had furnished the court a list of 44 schools that had, till the previous academic year, allocated points in the 100-points system to disabled children. On April 11, DoE ordered inspection of these schools to take stock of existing facilities and on May 7 told the court that 18 had facilities, 18 didn't, and another eight couldn't be inspected. The same day, the petitioner submitted another list of seven schools that had offered similar points in the previous session.

The court had asked DoE to direct 15 (the eight uninspected and the seven newly-submitted) schools to reserve seats for the group. On being summoned, the representatives of the 18 schools without facilities also appeared in court on May 20 and will have to return with their replies on May 28.

DoE on Tuesday listed 51 schools -with and without facilities, the eight uninspected and the seven introduced later. On May 7, the court, "considering the fact that finalization of the admission process is imminent in the view of the orders of the Supreme court," directed DoE to issue a circular "within 24 hours from today (May 7)." When DoE didn't, the petitioner filed a contempt suit. The principal secretary (education) had appeared in court on May 16. DoE, however, remains under contempt till next hearing.

Cardiologist Amita Garg, who initiated litigation in the matter, is disappointed that DoE has taken so long. "This is just the start for us," she says. "We'll have to now approach schools afresh."

When the points system was fixed for all this year, no separate category was created for the disabled candidates. Under Right to Education Act, the disabled kids, coming under the 'disadvantaged categories', are eligible to apply for the 25% free-ship quota.

However, there's just one draw per school for it and the number of EWS (economically weaker section) applications is so overwhelmingly large, the disabled group has found itself out of the race altogether.

Source: Times of India  

Wednesday, May 21, 2014

Central Administrative Tribunal directs Railways to appoint visually impaired candidates

Dear Colleagues,

Railways has always been very reluctant to hire persons with disabilities citing safety and security reasons though not even a single incident of safety has been attributed to disability till date.  Its actually a mindset of the Human Resource officials, inherent prejudices who attach incapacity to the disabled. 

In the instant case, nearly 10,000 visually challenged candidates had reportedly appeared in the examination in November-December 2013 after the railways advertised for 7,386 vacancies. All of them were, however, issued rejection letters by the Indian Railways before the results were announced for being “100 per cent visually challenged”.

In protest, the applicants moved  a petition in Central Administrative Tribunal (CAT), arguing that they are eligible and entitled to be considered for the posts, both on merit as well as under reservation for visually challenged persons.

The CAT in its order yesterday directed Northern Railways to publish a revised merit list and appoint the candidates, who qualified on merit as well as under the disability quota.

Arguing for the applicants, lawyer S K Rungta – himself visually challenged – said the Northern Railways’ recruitment cell must file complete results, including the results of 100 per cent visually challenged candidates, so that their merit position could be ascertained.

Rungta and lawyer Pankaj Sinha urged the court to direct the Railway Board to consider appointing the petitioners and other visually challenged candidates.

The railways responded by saying that the vacancies were for people with “low vision” and that 100 per cent visually challenged persons cannot be hired for the posts despite the fact that the posts in question are identified as suitable for completely blind by the Government of India.

The tribunal, however, directed Northern Railways and the Railway Board to publish the complete results within two months and appoint the qualified candidates.

Northern Railways spokesperson Neeraj Sharma refused to comment. “The matter is sub-judice, so we cannot comment. But the railways will take appropriate action after consulting its legal department,” he said.

Despite catena of judgments by High Courts and Supreme Court, the Railways continues to play hide and seek when it comes to the equal employment rights of the persons with disabilities. In this matter, despite CAT's direction,  I am sure, given the past experience, Railways will delay the matter by knocking the doors of Delhi High Court against the CAT Order. However, the writing is clear on the wall. The Railway officials in the Human Resource division needs serious sensitization on disability issues and also  need to put their house in order. The reporting mechanism, appraisal, posting/transfers, disability reservation & promotion processes & equalizing facilities, reasonable accommodation for the employees with disabilities is something that they desperately need to work on on an urgent basis. Hope the message goes to right people.

Related news in Indian Express today



Wednesday, May 14, 2014

Delhi HC redefines the Scope of Powers of Chief Commissioner Disabilities

Dear Friends,

The Delhi High Court has been increasingly relying on the Court of Chief Commissioner for Persons with Disabilities (CCPD in short) for disposal of cases / writ petitions filed on the subjects involving issues related to disability rights. The High Court has been transferring petitions and asking parties to appear before the CCPD with directions to CCPD to decide the matter within a time bound manner.

We had seen earlier that the High Court sought intervention of the court of CCPD in coming to a conclusion on a matter related to nursery admission for children with disabilities under the RTE and. 

Now the Hon'ble Court has issued the mandamus thereby forwarding the PILs filed by Score Foundation & AICB  against DSSB and, Govt. of Delhi challenging  an advertisement issued by the Delhi Subordinate Services Selection Board (DSSSB) as the said advertisement did not provide reservation for the visually impaired on two posts, which are identified for this disability category. These posts are Special Educator and TGT Computer Teacher’ stenographer & telephone operator.

While passing an important order on 8th May, 2014 in the matter, the Delhi High Court ruled that the post of Computer Teacher in schools is deemed to be identified for reservation and appointment of the visually impaired. 

The  High Court issuing the mandamus that Chief Commissioner will decide the matter and issue directions in the matter pronounced an empowering interpretation of Section 58 of the Persons With Disabilities Act. The court stated that the Chief Commissioner for Persons With Disabilities is a “Statutory body” who has the powers to “Ensure that the rights made available to persons with disabilities are given effect to. Meaning thereby, those who are subject to the provisions of the Act are to be made accountable for their acts and if it is found that an organization is not implementing the provisions of the Act the said organization being compelled to do so”.

The judgment further goes on to state “this would mean that the Chief Commissioner for Persons with Disabilities has the statutory power to ensure that such posts which are identified for reservation concerning visually differently abled persons are filled up from the said/category of persons”.

While referring the two petitions in reference for final adjudication to the Chief Commissioner for Persons with Disabilities, The High Court directed that the CCPD would dispose of the matter in three days time and his orders would be complied with by all concerned without “demur”.

This important judgment will not only ensure equitable reservation for visually impaired persons in recruitments, but also provide much needed teeth to the Chief Commissioner for Persons with Disabilities to enforce his directions. Needless to say that this judgement can be cited in various states wherever the respondents organisations challenge the power of the Court of Commissioner Disabilities.

Click here  for the Common Judgement of the Hon'ble High Court in the following two cases clubbed together     (in PDF)     (in Word File) :

  • WP (C) 1675 of 2014 titled Score Foundation and Anr Versus Min. of Social Justice and Empowerment & Others
  • WP (C) 2848 of 2014 titled All India Confederation of Blind Versus DSSB and Others
The Chief Commissioner for persons with disabilities subsequently heard the matter and ordered the Ministry of Social Justice to reanalyse and submit a consolidated list of identified posts for persons with disabilities and ordered DSSSB to republish posts for, and reserve one percent seats for persons with visual impairment. 

Click here for the Judgement of The Chief Commissioner for Persons with Disabilities (Accessible typed PDF copy)    (Scanned copy of original Order)



Tuesday, May 13, 2014

Private schools also to provide Separate Toilet & Drinking Water under the RTE Act

Dear Friends,

Though the Court has clarified that separate toilets for boys and girls  as well as drinking water provisions are a must under the RTE wherever education is being imparted - be it private schools or the government. However, it would have been better to also specify that the toilets and drinking water provisions were made accessible to children with disabilities in the schools.

The Supreme Court has ruled that all schools must have separate toilets for boys and girls, and also facilities for water for drinking and other purposes.  The court's May 9 verdict has made it clear that these were integral to Right of Children to Free and Compulsory Education (RTE) Act, 2009.

"Separate toilets for girls and boys as well as availability of water are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools," said the court.


Related News:


Dhananjay Mahapatra,TNN | May 11, 2014, 04.14 AM IST

NEW DELHI: The Supreme Court has ruled that separate toilets for boys and girls as well as drinking water facility were integral to right to education and ordered that all schools, including those run by minority community, must make provision for them. 

A bench of Justice Dipak Misra and Justice V Gopala Gowda said the May 6 judgment of the 5-judge constitution bench, which had exempted the minority-run schools from admitting poor and backward students under the Right to Education Act, had not diluted the mandate of the RTE Act for toilet and drinking water facilities in all schools. 

The bench said separate toilets and drinking water facilities "are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools." 

The bench was dealing with an application filed by JK Raju complaining that though the Supreme Court in 2012 had upheld the validity of RTE Act, the Andhra Pradesh government had not implemented the direction for providing toilet and drinking water facilities in the state. 

The court in 2012 judgment in Society for Unaided Private Schools of Rajasthan had said ordered the schools across the country, irrespective of whether they were government, government-aided, private or minority, to provide toilets facilities for boys and girls, drinking water, sufficient class rooms, and teaching and non-teaching staff. 

The Andhra Pradesh government through advocate K Raghava Rao informed the court that there had been some compliance of the court's judgment as well as provisions of RTE Act, but sought more time to fully implement the directions. 

The bench said: "We fail to appreciate the AP government's explanation. When the young children go to school and they do not have essential facilities, drinking water and separate toilets and the requisite teaching and non-teaching staff who impart education subject-wise, in our considered opinion that would be causing a dent in the system of imparting education." 

"Once there is an impairment of imparting education, needless to say the country would not be in a position to produce the conscientious and progressive citizens for this country," it said. 

While directing the principal secretary to AP government to file a status report on the implementation of facilities regarding separate toilets for boys and girls and drinking water, the bench asked the education secretary to remain present in the court on July 7.