Supreme Court of India- Degree of disability no ground to deny reasonable accommodation [Judgement Included]

Court: Supreme Court of India

Bench: Justice Dr Dhananjaya Y Chandrachud; Justice Indira Banerjee and Justice Sanjiv Khanna

Case Number: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 

Case Title: Vikash Kumar v. Union Public Service Commission & Others.

Date of Judgement: 11 February 2021  

Cited as:  2021 SCC OnLine SC 84

Cases refered/quoted: 

• Jeeja Ghosh vs. Union of India (2016)  7 SCC 761; 
• V Surendra Mohan vs. State of Tamil Nadu;  
• Rajive Raturi v. Union of India and Ors., 2017 ; 
• Disabled Right Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.

Case Brief:

On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). 

The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).

Case details:

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. 

The Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India… A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”

The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … the accommodation which the law mandates is ‘reasonable’ because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence…”

In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.

The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.

The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 

In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.

The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution. 

The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 

The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.

The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.

Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.

Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.

Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others. 

Dowload the judgement  [418 KB]

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

Dear Colleagues,

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

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

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

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

Here is the news from Indian Express.

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


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

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

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

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

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

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

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

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

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

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

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

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

Source: Indian Express

Deaf Can Now Legally Drive in India [Judgement included]

Court:              Delhi High Court

Bench:             Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna

Case No.:        W.P.(C) 10849/2009

Case Title:      The National Association of the Deaf & Anr Vs. Union of India

Date of Order: 14 Feb 2011

Case Brief:

Dear Friends,

While the activists and disability rights workers are actively engaged in writing, commenting, criticizing and suggesting on the New Disability Act, this success for the deaf people of India has silently knocked their doors. I have been closely following this case filed by Human Rights Law Network since September 2009 when it was admitted (click here to read my first post in Sep, 09) after an aborted attempt on an earlier date.  

I am so delighted to share with you all that after a wait of several months, (click here to read Nov 2009 post)  finally yesterday i.e. on 14th February 2011, in a landmark judgment benefiting 50 million people in the country, the double bench of  Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna, of Delhi High Court delivered their judgement  saying people with hearing impairment can also drive. "If they meet the necessary criteria and pass the test, they will be given driving licences and allowed to drive", the high court said. Hitherto, deaf were barred from appearing in driving tests as the archaic Motor Vehicles Act considered them a source of danger to the public.

A bench headed by chief justice Dipak Misra said, “Even if an applicant is totally deaf, he has to be called for a test. Even if he applies for a learner’s licence without a medical certificate and clears the test, he should be granted a learner’s licence." 

You will notice that the judgement doesn't speak a single word against the Union of India nor against the existing system of issuing licences, yet beautifully carves out a way that deaf people in India can not be discriminated against merely on the basis of their disability!

The Question in Form 1-A [which deals with medical certificate and relates to Rules 5(1), 5(3), 7, 10(a), 14(d) and 18(d)] of MV Act 1988  that was filled up by the doctor,] i.e. "In your opinion, does the applicant suffer from a degree of deafness which would prevent his hearing the ordinary sound signals? " has become irrelevant in light of this judgement! 

The Hon'ble Judges have, without making any comment on the  stand /defence of the Government of India in the case, simply reproduced the same to amuse the readers. I am reproducing  the  major defences of the Government of India for your amusement. For your information these defences are  based on a conclusion of a meeting of all relevant officials from various ministries including Road Transport, Health etc:

(i) Indian roads have far more hazards than in those countries which have been referred to in the petition.  This is evident from the fact that there is highest number of road facilities worldwide occurring due to road crash in India.  Indian roads have dense vehicle population.  The pattern of driving is also mix.  Besides, there is also lack of traffic discipline.  While using the roads, it is predominantly required to give audio signal to the vehicles around to caution other drivers or for giving way.  Such situations are not seen in developed countries.
(ii) Use of rear view mirror may not be a full proof solution because vehicles often are not fitted with such mirrors on both sides. Even if they are fitted on the vehicle, the users often fold them back.
(iii) In case of hilly roads, it is mandatory to blow horn on the sharp as well as blind corners.  The driver would be in a dangerous position if he is unable to hear the audio signal.
(iv) While driving the vehicle, inside noise, such as running of engine, tyre noise etc. is an indicator for the health and safety of the vehicle.  The deaf person will be in an unsafe situation because he will not be able to gather these signals.
(v) Luxury vehicles are often fitted with audio systems.  Loud music inside the vehicle may pose unsafe situation but purely by the choice of the driver and hence, cannot be made a ground for allowing deaf persons to drive.
(vi) The UN Convention on Rights of Persons with Disabilities does not qualify the extent of deafness.
(vii) In developed countries, there is a system for imparting training to deaf people in order to obtain driving licence.  There is no such system prevalent in the country.
(viii) International Driving Permit is valid for one year only and thereafter even a foreign national is required to obtain the driving licence afresh as per the existing rules and regulations in the country.  Thus, analogy given in this regard between the foreign national and Indian national is not correct.
(ix) Every year a large number of accidents took place in the country involving motor vehicles on roads.  Many of them prove to be fatal.  During the year 2007 alone, there were around 4.8 lakhs road accidents which killed around 1.15 lakh people and injured more than 5 lakhs person in India.  While the Government has been making all efforts to bring down the rate of accidents substantially, it cannot afford to take the risk of endangering the lives of deaf drivers as well as other road users.

And finally this Committee opined:  "Hearing levels up to 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level up to 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle.  Persons suffering with severe and persistent vertigo should not be issued a driving licence."

This was like only reiterating what existed earlier!

The Judges in the operative para of the judgement categorically stated the statutory requirement,  "However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner‘s licence without the medical certificate and if he passes the test as required under Rule 11, he  shall be granted the learner‘s licence as that is the statutory requirement.   Similarly, if a person belonging to the said category satisfies the necessary  criteria, he shall be allowed to obtain the licence."

The judges refrained from making any comment on the important issues raised in the writ petition or criticizing the government action. Also they refused to take liberty to enter the domain of legislature on the prayer of changing the policy on the subject and said insegregable facet of the basic structure of the Constitution of India. 

This gives sufficient indication to the Government of India to appropriately change their discriminatory and restrictive practices against persons with hearing impairment. We hope the Government will take appropriate steps to set the malady right.

At my personal level, being a lawyer, I was looking for some strong words from the Hon'ble Court on the conduct of the so called committee of technical people who opined that the deaf can be danger to public without even appreciating the documents on record! However, the court did not comment on any issue that could have directly targeted any government official.

So, silently the purpose has been achieved. I hope the systemic changes will also take place and Deaf people will not be harassed while seeking valid licences.  

Now a passing remark from a stakeholder, "At least now deaf people would be able to drive legally with valid driving licence. Who bothers about going and taking a driving test, when driving licences can be bought through middlemen without even going to RTO in other states, if not in Delhi!"

The jobs doesn't end here. After this judgement, the major work is to spread the word around about this judgement and get the relevant rules changed in all states and union territories across the length and breadth of India. The DPOs and activists have this major role to perform. I want to congratulate my senior colleague Shri Collin Gonsalves, Senior Advocate, Mr. Pankaj Sinha, Advocate and their team for so successfully taking up this case which is almost like re-writing the rules of equality - at least for deaf people of this country. I am sure, my friend Arun Rao and friends from National Association of the Deaf would agree to this. Congratulations to one and all!

regards

SC Vashishth

Advocate, Disability Rights

Click here to read the judgement dated 14 Feb 2011 or read the embedded judgement below:

Supreme Court of Zimbabwe rules in favour of Independent Voting rights for PWDs

Disabled hoping for wider rights in the new Constitution

Political Editor

BOOSTED by the recent Constitutional Court ruling nullifying a section of the Electoral Act that required polling officers to assist visually impaired voters to cast their ballots, the local disability movement hopes that the proposed new constitution will guarantee them wider rights.

The Supreme Court, sitting as a Constitutional Court, recently declared Section 60 of the Electoral Act null and void saying it violates the principle of the secret ballot, in a landmark case brought up by Mr Simon Mvindi, a visually impaired voter, and five others.

The disability movement views the milestone ruling as the first step in upholding the voting and more rights of the blind. People living with disability hope the ruling would stimulate action towards protecting the voting rights of other disabled groups, including the deaf, dumb, the physically handicapped and persons of short stature.

Welcoming the January Constitutional Court ruling on blind voters, Mr Nyamayabo Mashavakure, a visually impaired teacher, said the basis for the holistic protection of the disabled's rights must be enshrined in the new Constitution.

He said while the ruling was plausible, political parties themselves and the Government through the electoral authority, must consider people with different disabilities in developing political communication materials, such as producing television campaign messages in sign language or posters in Braille.

"The people who approached the court on this matter did a very good job," said Mr Mashavakure.

"The ruling is good, not only for the visually impaired but also for everyone who is living with disability. We hope as we start drafting the new Constitution, we will come up with clear guarantees on the wider rights of the disabled, not just voting rights."

It is estimated that 10 percent of any country's population is disabled, which means that about 1,3 million Zimbabweans have various forms of disability.

The country is in the process of coming up with a new constitution in terms of the Global Political Agreement. Although lack of funding has hampered progress, a significant amount of work has been done since the process started early last year with the appointment of the Parliamentary Select Committee, which is charged with leading the process.

Outreach teams are expected to be dispatched across the country in the next two months to collect the people's views on the proposed supreme law, providing an opportunity for special interest groups like disabled people to contribute.

In his court papers filed in the Supreme Court case, Mr Mvindi recalled that on 29 March 2008 he, accompanied by his wife, went to a polling station hoping to cast his ballot in the harmonised election. However, he said he was taken aback when polling officers told him that they, and not his wife, could legally assist him in the voting process.

"I must hasten to point out that with the marital bond between my wife and I, I am not able to trust anyone more than I trust my wife," he said in the papers.

"She has been by my side throughout the whole period we have been married and from the time I lost my sight completely, she has acted as an aide in all my needs. To my utter shock and surprise, I was denied the right to be assisted by my wife."

The Constitutional Court heard his plea and ruled in his favour and his peers. The full bench unanimously agreed that the section of the Act violated the right of the visually impaired to voting by secret ballot and declared it unconstitutional.

"It is ordered that Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared to be ultra vires sections 23A (2) (a) of the Constitution of Zimbabwe. Accordingly, Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared null and void, and is struck down," ruled Chief Justice Godfrey Chidyausiku.

Deputy Chief Justice Luke Malaba and Justices Wilson Sandura, Misheck Cheda and Paddington Garwe concurred.

Advocate Happias Zhou, who represented Mr Mvindi and others, said although his clients were blind, they were not illiterate. He said that the notion that the blind cannot exercise their voting rights other than in the presence of the persons stated in Section 60 of the Act was clear interference with the secrecy of the vote. He suggested that ideal secret voting for the blind people would allow voters to be accompanied by people they trusted.

It was submitted that in other countries, the visually impaired vote on their own on tactile Braille ballots, enlarged print, electronic ballot and other means.

The Minister of Justice and Legal Affairs, Patrick Chinamasa said he appreciated the need for the changes, but the electoral authority does not have funds to ensure that the special ballot papers, electronic ballots are made available.

Mr Mashavakure said most people who are visually impaired shunned voting for fear of possible political reprisals because the Electoral Act required them to disclose their political preferences to polling officers, who are essentially strangers to them.

He said if the Government does not have resources to provide special voting materials for the blind, it must allow the visually impaired to be assisted by their own aides during voting, even on common ballots. This, he said, removes the expense from the Government and places it on the disabled voter.

He said the new constitution must have a non-discriminatory disability clause as opposed to the current one, specifically Section 23 of Constitutional Amendment Number 17, which outlaws discrimination on the basis of physical disability only.

"Physical disability is not the only form of disability," he argued.

"There is also the question of language. If you look at the Kariba Draft for instance, it gives languages that are spoken in the country like Shona, Ndebele, Venda and others. However it leaves out one important language - sign language."

He said the National Constitutional Assembly draft has also its limitations.

"Its disability clause, which is Section 41 I think, gravitates towards the medical model of disability. It suggests that people living with disability are sick or something like that, but it must be known that they were ill at the point that caused their disability, but are now fine. So the constitution must be general in its articulation of disability, not specifying things like 'physical disability' or 'protecting oral languages', excluding sign language."

Mr Tsarai Mungoni, programmes officer (research and advocacy) at the National Association of the Societies for the Care of the Handicapped (Nascoh) said disability rights must be clearly spelt out in the Bill of Rights, adding that the Government must assist the disabled with social grants.

"Disability is expensive to manage," he said, "so people with disability need a social protection scheme in form of a disability grant, to be given to any disabled person, whether they are employed or not. This will serve to mitigate against disability-induced poverty. The Constitution must also clearly provide for affirmative action in terms of economic empowerment, education and representation in private and public sectors."

Mr Mungoni, who is a member of the Thematic Committee on Disability in the Select Committee, decried the fact that out of a population of 1,3 million disabled people in the country, about 20 of them are in the sub-committee of the handicapped.

He added that even in Parliament, there is no MP representing the disabled.

"That is where it starts — lack of representation," he said. "But we are saying the constitution must state a quota to be held by the disabled in Parliament and other critical areas."

Delhi High Court disposes off the PIL in favour of Inclusive Education in Govt. Schools in Delhi

Dear Friends,

So finally the Delhi High Court has disposed of the Public Interest Litigation No. W.P.(C) 6771/2008, Social Jurist Vs. Govt. of NCT of Delhi & Anr, yesterday i.e. on 20.01.2010. The final order merely disposes off the petition while making its earlier directions final which need to be implemented and the Committee appointed for the purpose will oversee its implementation.

This PIL has brought to sharp focus the precarious condition of the disabled children in the Government Schools. The situation was getting worse as disability was left to the NGOs to handle as if the state only had a role of giving out doles to few NGOs working on this. This led to uprooting of many children with disabilities especially the Visually impaired and the Hearing impaired to cities where some facilities existed. While children with other disabilities suffered in silence with no school ready to take them for they had no infrastructure or support to teach them.

The judiciary has restored the faith of people with disabilities, their parents, families, friends and supporters, NGOs that with this positive judgement, situations will change for them in the Government Schools too and inclusive education will not get restricted to ideological books only.

If this judgement is to be implemented, it would require a large number of special educators, therapists and supporting staff trained in sign language, braille and teaching techniques to include all by using multi-sensory methods. A daunting task both for the Govt. and as well as Rehabilitation Council of India. RCI will have to make sure that quality of training is maintained on highest standards in all their affiliated colleges, institutes. In the past there have been several cases where there were questions raised on quality of training in certain institutions. This would be necessary to protect the future of children with disabilities in mainstream (inclusive) education.

While the Education Department of Delhi Government has initiated the process of changing the Recruitment Rules to include Special Educators, other rehabilitation professionals have not been thought about as yet. To make inclusive education a reality, children with disabilities would require support of therapists, rehabilitation professional among all which should be considered by the Government.

Now with Mr. Agrawal been appointed Chairman of a Committee to oversee implementation of Right to Education of Disabled Children, these issues could be taken up with the Committee and necessary inclusion of more rehab professionals could be effected.

Recently, Central Board of Secondary Education (CBSE) has also indicated through a Categorical Circular that they would go to the extent of de-recognizing the Schools if any school dared to deny admission to a child with disability. This is a huge step in policy as well as in the domestic law of India - a step further to realize the mandate of UNCRPD.

We hope we will together face the challenges that might come in the way of realizing inclusive education a reality to make our nation a happier, welcoming & rights based place for its diverse population including those experiencing disability of any kind.

Regards

SC Vashishth

Advocate-Disability Rights

subhashvashishth@gmail.com

09811125521

Govt. brings in Notification to give equal benefit under PLI Scheme, but is that equal indeed?

Refer to my earlier post on Government seeking six week more time to bring in an appropriate insurance scheme which doesn't discriminate employees with disabilities.

After a prolonged period finally they came up with a notification on the last date of hearing which provides the maximum insurance limit up to 10 lacs as available to other employees. You can view the notification of Department of Post by clicking here: Notification dated 04th January 2010

In other words with this notification the maximum limit of insurance for physically handicapped persons has been made equal with maximum limit prescribed under Rule 3 of POIF Rules and revised from time to time to ensure non-discrimination and equality with other employees.

Consequently, POIF Rules have been amended to include Physically Disabled employees also. However, what remains to be seen is that the extra premium being charged from the employees with disabilities has yet not been addressed which would actually go on to prove that the insurance scheme is still discriminatory against employees with disabilities.

I am hopeful that they would address this lacunae also and not ask employees with disabilities to cough up extra premium for an insurance amount that is equal to other employees.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

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

Dear Friends,

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

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

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

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


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

regards

S.C. Vashishth, Advocate

Delhi HC directs Centre to amend its insurance rules for disabled

8/31/2009

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

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

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

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

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

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

Dear Friends,

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

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

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

regards

SC Vashishth

To read the news from source click here

Raped mentally challenged girl can continue pregnancy: SC

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

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

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

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

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

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

No Teachers for Disabled Students in MCD Schools!

Dear Friends,

For me, this report means, all the efforts of RCI (Rehabilitation Council of India) are taking overseas flights for jobs and this brain drain is surely going to cost us dearly. The manpower trained at the cost of ex-chequer is not being used in India except in a handful NGOs, grassroot organisations and Govt. schools etc. Isn't it an irony that even today we don't have any facility of educating a child with disability in a mainstream school in a city like Delhi, forget about a rural school in Jalpaiguri District of West Bengal!?

If I correctly remember, in my earlier posts of 02 January 2009 and 22 December 2008, there was a proposal from Delhi Government that they would open a Model school in each district both for MCD schools and Delhi Govt. Schools so that the needs of students with various disabilities could be met. However, there seem to be no update publicized by the department nor there is any recruitment of special educators by the Education Department of Delhi Govt. This is no excuse and the Court is rightly shocked over such lapses.

Not only there is an urgent need to sensitize & train mainstream teachers about needs and abilities of children with disabilities but also the Principals, vice principals, Headmistress/ headmasters, Education Officers and supporting staff who often are found unaware about such issues. Ignorance can not be allowed to be a blessing in disguise for them. I have personally received messages from teachers whom I sensitized & trained at DIETs (SCERT) on Inclusive education and accessible school infrastructure, that their Principals / Viceprincipals /Headmistresses were not willing to take in disabled students and sending their parents to find admissions in special schools nearby. There is an urgent need to tackle such a trend among the senior staff at schools.

Appointment of Special Educators in all MCD Schools/ Delhi Cantonment Schools & Delhi Administration Schools will boost the confidence of the School Managers and staff to readily take in more students rather than discouraging them to go away.

Also the process of extending support to such students need to be made more smoother. Currently, as per my information, the concerned class teacher has to line up in the office of the District Education Officer to get the concessions and other facilities for the child with disability in his class while leaving the class of 50-60 unattended students. This is surely discouraging from all angles. May be the Secretary-Education, Govt. of Delhi needs to look at this seriously.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

09811125521

Here is the shock that nerved the High Court of Delhi :

MCD schools must have teachers for disabled students: HC

HT Correspondent, Hindustan TimesEmail AuthorNew Delhi, May 28, 2009

For 12-year-old Avinash, a visually impaired student of an MCD school in Jahangirpuri, it was smooth sailing from classes I to IV. But since two years, he has been stuck in Class V, as his promotion now is based on performance.

“What could he do? All four years he just came to school and went back and could do nothing,” says lawyer Ashok Aggarwal.

He is pleading in the High Court for a direction to government and MCD schools to appoint special teachers for differently-abled students. “There was no teacher in the school who knew the Braille technique,” Aggarwal says.

As per the MCD’s own admission there are 10,600 such students in schools across Delhi.

A shocked Delhi High Court on Wednesday ordered the MCD and Delhi Government to take immediate steps to appoint adequate number of such teachers.

The court was hearing a PIL filed by Social Jurist, an NGO that had contended that 1,000 schools run by the Delhi government and 1,800 MCD schools do not have trained teachers for disabled students.

Click Here to read from source