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

Dear Colleagues,

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

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

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

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

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

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

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

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

The double bench of Hon'ble Chief Justice Shri. AK Sikri and Hon'ble Justice Rajiv Sahai Endlaw directed the Institute to relax all three impugned conditions i.e.

• Writer to be not more than 20 years, 
• Only one writer to write all exams and lastly 
• relative can not write the exams.

The Hon'ble court also verbally asked the media people present in the court to give wide coverage to this issue in national dailies so that it reaches all affected students and their families. 

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

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

Documents available for Download

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

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

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

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

Reflections of Stakeholders

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

Acknowledgments

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

Media Coverage

Times of India: 

HC asks ICAI to relax norms for disabled
TIMES NEWS NETWORK 

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

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

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

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

Other Coverage:

The Hindu: Court allows kin as writer for physically challenged examinees.

Indian Express: http://www.indianexpress.com/news/ca-exam-high-court-relief-for-differentlyabled-candidates/944513/

Asian Age: http://www.asianage.com/india/court-relief-disabled-aspiring-chartered-accountants-555

Business Standard: http://www.business-standard.com/generalnews/news/let-disabled-ca-examinee-to-take-kins-help-in-examhc-to-icai/4033/

IBN Live: http://ibnlive.in.com/generalnewsfeed/news/let-disabled-ca-examinee-to-take-kins-help-in-examhc-to-icai/993586.html

News Track India: http://www.newstrackindia.com/newsdetails/2012/05/02/374--Court-relief-for-disabled-aspiring-chartered-accountants-.html

News.webindia: http://news.webindia123.com/news/Articles/India/20120502/1976897.html

News reporter.in: http://www.newsreporter.in/let-disabled-ca-examinee-to-take-kins-help-in-examhc-to-icai

News Taaza.com: http://news.taaza.com/news/939207-court-relief-for-disabled-aspiring-chartered-accountants.html

Ummid.com: http://www.ummid.com/news/2012/May/02.05.2012/crt_relf_fr_dis_ca.htm

Sify.com: http://www.sify.com/news/court-relief-for-disabled-aspiring-chartered-accountants-news-education-mfcvEiiaidd.html

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

Bench comes to the rescue of physically challenged student

The Hindu,  MADURAI, May 2, 2012

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

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

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

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

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

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

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

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

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

Keywords: physically challenged student

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

 Dear readers,

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

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

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

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

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

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

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

Judgement W.P.(C) 9024/2011 titled Master Araav Porwal Vs The Mother International School 

ICAI imposes arbitrary Writers / Scribes Conditions for Students with Disabilities

Dear Colleagues,
The Institute of Chartered Accountants of India (ICAI) is organizing its annual exams starting 03^rd May 2012. It has provided “INSTRUCTIONS TO EXAMINEES – MAY, 2012” at link: http://220.227.161.86/26540exam15942.pdf. These instructions are utterly silent on the conditions for  Scribes allowed for Persons with Disabilities as per law, though they are exhaustive on other conditions to be met /observed for the examination.

This time the candidates with disabilities have been surreptitiously sent a three page document titled “Guidelines and Procedure to be followed regarding granting of Writer/ Extra Time to the Differently Abled Candidates”. Coincidentally, this document has not been provided  on the Institute website though is purported to have been adopted by Examination Committee during January 2012 and effective from May 2012 examinations. 

These impugned guidelines are illogical, arbitrary and work against the spirit of The Persons with Disabilities Act 1995 that aims to ensure equal opportunities, Protection of Rights & Full participation of persons with disabilities since they insist the following conditions among others:

1. The writer should not be above 20 years of age as on the date of commencement of a particular examination for which the writer’s assistance would be utilized by a candidate (for instance 02nd May 2012 for May 2012 CA Examinations)
2. The writer should be the same person for all the papers of an examination and no request for change of writer shall be permitted.
3. The writer should not be a relative of the candidate for whom he / she is acting as a writer.

The students with disabilities are in shock as they can not meet such arbitrary guidelines forced upon them. However, most students are not willing to come openly  against the institute for fear of a backlash which may spoil their career.


None of the earlier guideline (for 2007 or 2010 exams) which are available on the ICAI’s website at link: http://www.icai.org/new_post.html?post_id=639 do not contain any of such arbitrary and illogical conditions. The conditions put forth are unreasonable & discriminatory against persons with disabilities and defy the objective and mandate of the Disabilities Act.

I have been approached by several students who have failed to find writers below the age of 20 and are most likely to fall in to trap of missing their examinations despite their good preparation for the same.

Also since this is an exam season and most teen-aged students who may be eligible to act as writer as per the eligibility condition put forth by the new guideline,  are busy in their exams hence it is next to impossible to meet such a unreasonable guideline. Moreover, the relatives have been barred from acting as a writer. I am wondering as to who would then come forward to help (even at a cost!) to write for them. They are bound to fail due to lack of level playing field!

The condition that write should be same for all the papers spread over a length of period is also a detrimental to the interest of the examinee  since the teenager, who may agree to write the exam for the disabled student may have his own exam clashing. Then most students in graduation second or third year are more than 20 years.

Such attitude with the students with disabilities is an open discrimination and a discouragement for them to enroll for the course and not only is against the mandate of the Disabilities Act but also Article 14 of the Constitution of India that ensures equality to all. The names of the students have been withheld on their request since they fear revengeful action on the part of ICAI.

I have taken up the matter with the Chief Commissioner- Disabilities and hope that good sense will prevail over the ICAI and they would withdraw the unreasonable guideline.


If you remember, recently, several organisations working for the Persons with disabilities in India (especially Low Vision and Blind), to which I have been a party myself, have suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons". These have been sent to Ministry of Social Justice for their acceptance. In all probability these would be accepted since the content is the revised edition of the draft guidelines discussed in the Meeting of the State Commissioners Disabilities in the year 2008, if I correctly remember hence has a principal approval from the authorities.


I suggest the ICAI to accept these guidelines in toto for implementation in all their examinations (including the one in May 2012) and take a lead in being the first progressive and disabled friendly institution of the Government of India.


regards,
Subhash Chandra Vashishth

Advocate- Disability Rights

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