Showing posts with label high court. Show all posts
Showing posts with label high court. Show all posts

Wednesday, December 29, 2010

Hi,


First of its kind judgement from a High Court in recent times where the provisions of Section 47 of the Persons with Disabilities Act 1995 have benefited an employee acquiring a mental illness, while in service!  Congratulations to High Court of Madras (read Justice K Chandru) on this progressive judgement, Mr. Narayanan the employee, the disability sector and not to forget the advocate who presented the case!


Here are the links to the case details:


Mental illness can be included under ‘disability'
B. Kolappan



Court directs State department to pay full salary to employee who was relieved from service


Says termination of his services clearly in contravention of Section 47 of the PWD Act

CHENNAI: Mental illness or retardation can be brought within the term ‘disability' under sections of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act), the Madras High Court has said.
Directing a State government department to pay full salary, including annual increment and other monetary and service benefits, to an employee who was relieved from service on the ground of mental disability, Justice K. Chandru said the benefits should be given from the date of disability till the date of his retirement.
Allowing a petition filed by C. Narayanan, who worked as Assistant in the government Industrial Training Institute (ITI), Justice Chandru also said that the order of the Director of Employment and Training terminating Mr. Narayanan's services was “clearly in contravention” of Section 47 of the PWD Act. Section 47 clearly indicates “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.”

“It is ironical that the respondents belonged to the Department of Employment and Training. They are expected to advise other departments about the rights of employees in such departments. If the Department of Employment itself is not aware of the provisions of the Act, that really is a sorry state of affairs,” the Judge said.

The authorities' action had betrayed their ignorance of the PWD Act, he said and directed them to pay case cost of Rs.5,000 to Mr. Narayanan for having made him run from court to court against the dismissal.

Mental illness can be included under ‘disability'  
Read more at :  








Mental disability no ground to sack employees: HC


Read more: Mental disability no ground to sack employees: HC - The Times of India http://timesofindia.indiatimes.com/india/Mental-disability-no-ground-to-sack-employees-HC/articleshow/7175522.cms#ixzz19V1cigTe

Friday, July 24, 2009

Detailed Facts of the Chandigarh Case of Raped Mentally challenged Girl's Pregnancy

Dear Friends,

My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!
For those who are keen on accessing the Supreme Court Final judgement, they may access from here: Final Judgement: Shuchita Srivastavs Vs. Chandigarh Administration
Justice Kannan, a sitting Justice of Chandigarh highcourt, who is also a blogger since 2007 has reflected on this case on his blog which might be of interest to the readers. You may access Justice Kannan's perspective here.

The detailed note from Shri Collin Gonsalves also includes both judgements from the High Court of Punjab & Haryana which elucidates the reasoning for the order later reversed by the Hon'ble Supreme Court as informed in my earlier post. To me in either case, the girl has suffered and would suffer. By allowing the girl to retain the pregnancy, it might have been a win for pro-life activists but the track record so far in this case does give a grim picture of society and social organisations coming forward to support leave the Govt. setup aside where such a terrible incident occured.


Here is the note for your information:

The Right to Abort Vs. The Right to Give Birth

Chandigarh Administration Vs. Nemo

Colin Gonsalves

This note is being circulated so that you may have a look at the facts before the High Court in this case so as to make an informed decision on the merits of the case.

Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.

The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman’s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.

In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.

A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she also cries almost daily”. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:

“2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.

3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.

4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.

5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.

6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.

7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]”.

Click here for remaining part of the note

Click here for the Part-I of Punjab & Haryana High Court Judgement

Click here for the Part-II of Punjab & Haryana High Court Judgement
regards
SC Vashishth, Advocate

Tuesday, March 10, 2009

Need of Sensitive & Aware Judges in the High Courts

Dear Friends,

In the instant case, I am delighted that a senior judge of a High Court had the sensitivity, to use his extra ordinary jurisdiction, to protect the person and properties of a Person with Disability (Intellectual Disability). However, I am also at a loss of words to explain what I feel on the lack of awareness of the National Trust Act 1999 in the judiciary!

I strongly feel that we in the disability sector have to take this responsibility also to spread the message across and yes there is a urgent need to raise the awareness level of the Judicial Officers also especially in various High Courts of India who often use their extra-ordinary jurisdictions and writ jurisdictions to decide matters relating to Fundamental Rights of the marginalised sections of the soceity like the present one.

Appended is the News. To read from Source click on Source: Express Buzz.com regards,

Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521

There is a law to protect the mentally retarded

Scaria Meledam First Published : 09 Mar 2009 01:39:00 AM ISTLast Updated : 09 Mar 2009 01:43:25 PM IST

The ‘Law Watch’ published on January 26, 2009 had reported about the exercise of the extra-ordinary jurisdiction of the High Court by Justice V Giri to appoint a guardian to protect the person and properties of a mentally retarded person since the Mental Health Act did not contain a provision for such appointment and to point out the need to correct the lacuna in the Act by a suitable amendment.

Referring to the action, Dr (Mrs) Rajam P R S Pillay from Thiruvananthapuram has written a letter pointing out that the Court had missed the fact that there was an Act providing the appointment of legal guardians for mentally retarded persons and thus filling the lacuna in the Mental Health Act.

The National Trust for the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 (for short, The National Trust Act), provides for the constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The head office of the Trust is in New Delhi and it has offices at other places in India. The general superintendence, directive and management of the affairs and business of the Trust is vested with a board consisting of a chairman and 20 members. The board should constitute a local-level committee for a specified area. The committee consists of a civil service officer, a representative of a registered organisation and a person with disability.

Section 14 of the Act provides for guardianship.
A parent of a person with disability or his relative can make an application to the local-level committee for appointment of any person of his choice to act as a guardian of the persons with disability. Any registered organisation also can make an application to the local- level committee for appointment of a guardian for a person with disability. While considering the application for appointment of a guardian, the local-level committee should consider whether the person with disability needs a guardian and the purposes for which the guardianship is required and then make recommendation for the appointment of a guardian. It can also provide for the obligations of the guardian.

Section 15 details the duties of Guardian:
Every person appointed as a guardian of a person with disability should, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. Every guardian should, within six months of his appointment, deliver to the authority which appointed him an inventory of immovable properties belonging to the person with disability and all assets and other movable property received on his behalf together with a statement of all claims due to and all debts and liabilities due by the person with disability. Every guardian should also furnish to the appointing authority within three months after the close of every financial year an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.

There is also a provision for the removal of guardian: Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is abusing or neglecting a person with disability; or misappropriating or neglecting the property, they should apply to the committee for the removal of the guardian. Then the committee should, if it is satisfied that there is a ground for removal, remove the guardian, recording reasons for the same and appoint a new guardian or make other arrangements for the care and protection of person with disability. The removed guardian is bound to deliver the charge of all properties of the person with disability to the new guardian and to account for all moneys received or disbursed by him.

The P R S Pillay Memorial Trust of which Dr Rajam is the managing trustee, is the state nodal agency centre of the National Trust which has constituted the local-level committees in all districts under the chairmanship of District Collectors.