Thursday, August 24, 2023

Delhi HC passes important directions to make Court system accessible and to realise Access to Justice for persons with disabilities under Section 12 of RPwD Act 2016 and emphasizes "Active Judicial Conduct" to ensure PwD's actual, practical and meaningful participation in the judicial process and fair trial.

Court: Delhi High Court

Bench: Justice Swarana Kanta Sharma

Case No.: W.P.(CRL) 2500 / 2022

Case Title: Rakesh Kumar Kalra Deaf Divyang Vs. State Govt. of NCT of Delhi

Decided on: August 24, 2023

Cited as:  Revised Neutral citation-  2023:DHC:6132  ; 2023 SCC OnLine Del 5261


The petitioner, by way of above writ petition filed under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 and Article 14 and 21 of the Constitution of India, sought issuance of appropriate writ, order or directions in the nature of mandamus thereby directing the respondent/State to constitute a Special Court as per Section 84 of the Rights of Persons with Disabilities Act, 2016 and to make the criminal trial he is facing friendly to his disability so that he can participate in it fully.

"It was crucial that this Court examine the question in view of the issue raised by the petitioner herein as to whether the judicial system itself has complied with the requirement of equality apropos a person with disability who is an accused or petitioner before the court of law, while it administers justice." expressed the court.

The Court issued pivotal directions to address the critical issue of ensuring that persons with disabilities can actively participate in legal proceedings. The court emphasized that no citizen should feel denied of justice due to physical or mental disabilities, either because of the lack of appropriate infrastructure or insensitivity within the judicial system.

The case at hand involved a petitioner who had filed a writ petition under Article 226 of the Constitution and Section 482 of the Criminal Procedure Code. The petitioner, who had been deaf since childhood and also suffered from post-traumatic stress disorder-induced eye cataract and post-traumatic fractured maligned joint stiffness, faced significant challenges in participating in trial proceedings related to allegations against them. The court recognized that these challenges infringed upon the principles of natural justice, contravened the Right of Persons with Disabilities Act, and violated constitutional rights.

To address these issues, the court referred to the importance of fair trials as a fundamental right in the Indian criminal justice system, citing the case of Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374. The court highlighted the need to implement Section 12 of the Right of Persons with Disabilities Act, which aimed to make legal proceedings more accessible to individuals with disabilities. It also referred to the Supreme Court's E-Committee's Standard Operating Procedure on Preparation of Accessible Court Documents.

The judgment also pointed out the inadequacy of Special Courts under the RPWD Act, as they were limited to certain offenses. The court stressed the importance of alternative methods, such as the use of braille, sign language, and assistive technology, to enable individuals with disabilities to participate in legal proceedings effectively.

Additionally, the court provided a list of infrastructural improvements necessary to ensure accessibility, including facilities like wheelchairs, elevators, and sign language interpreters in courts. It called for judicial education and training to raise awareness of the needs of persons with disabilities, drawing inspiration from the cases of State of Maharashtra v. Bandu (2018) 11 SCC 163 and Smruti Tukaram Badade v. State of Maharashtra (2022 SCC OnLine SC 78.

The judgment underscored the need for a specific provision within the RPWD Act to address the requirements of witnesses, accused persons, advocates, and others involved in judicial trials and proceedings.

To ensure effective compliance with Section 12(4)(c) of the RPWD Act, the court issued various directives, including the provision of essential electronic gadgets, the creation of schemes to address the needs of accused persons with disabilities, and increased public awareness about available resources. The Delhi Judicial Academy was also tasked with holding sensitization programs for judges, lawyers, court staff, and police.

The Court was of the opinion that active judicial conduct to ensure access of persons with disabilities in  the judicial process will ensure achieving constitutional vision of justice of ensuring fundamental and human rights of persons with disabilities and their actual, practical and meaningful participation in the judicial process and fair trial.

In conclusion, the Delhi High Court's judgment emphasizes the importance of ensuring access to justice for persons with disabilities, particularly in the context of the specific case. The court provides a comprehensive set of directions to address the challenges faced by the petitioner and others in similar situations. These directives aim to create a more inclusive and accessible judicial system, thus upholding the constitutional vision of justice. The authorities are required to implement these directives within a three-month period.

Read the judgemnet here:

Friday, August 18, 2023

Delhi High Court disposes of petition on Equal Health Insurance for persons with disabilities, after IRDAI and 29 Insurance companies bring out health policies for PwDs [Judgement included]

Court: High Court of Delhi at New Delhi

Bench: Justice Pratibha M Singh

Case No:  W.P.(C) 6074/2019

Case Title: Saurabh Shukla Vs. Max Bupa Health Insurance Co. Ltd. & Ors.

Date of  Judgement : 18 August 2023

Brief of the Case: 

Please refer to our earlier post updating on the hearing dated 13 December 2022 in the present case titled "Delhi HC: Right to Life includes Right to Health, Referring to persons with disabilities as 'sub-standard lives' is 'unacceptable terminology', directs IRDAI to act."

The matter was further listed before the Court on 17th March, 2023. On the said date, in compliance with the directions dated 13 Dec 22, IRDAI placed on record a status report, giving details of the tasks undertaken by IRDAI. As per the said report, IRDAI had called a meeting of all general and health insurance companies on 18th January, 2023, where the relevant issues were discussed and a committee consisting of six senior officials from the various insurance companies was constituted. The Committee was entrusted with the following tasks: 

“i. Design and develop specific product/s for the following: 

     a. Persons with Disabilities (PWD) 
     b. Persons afflicted with HIV/AIDS 
     c. Persons having mental illnesses

ii. The design and development of the products shall be comprehensive enough to meet the insurance needs of the respective groups. 

iii. The complete documentation shall be developed -- Proposal form, Schedule, the Policy wordings including the various terms and conditions etc., apart from a Customer Information Sheet (Key Features Document).”

Thereafter, a model policy was drafted by IRDAI and a circular dated 27th February, 2023 was issued to all general and health insurance providers, directing them to launch products for persons with disabilities (PWD), Persons afflicted with HIV/AIDS, and those with Mental Illness, with immediate effect. IRDAI also complied with the third direction as contained in paragraph 26 of order dated 13th December, 2022 and the previously used expression ‘sub-standard lives’ in Regulation 8(b) of the IRDAI (Health Insurance) Regulations, 2016 was deleted.

The Petitioner was also offered a health insurance policy by Niva Bupa Health Insurance Company and expressed his willingness to avail of the policy, vide his email dated 1st March, 2023. However, the Petitioner had certain contentions against the specific details of the policy offered. Vide order dated 17th March, 2023, this Court directed the Petitioner to avail the health insurance offered by Niva Bupa, while allowing the Petitioner to make a representation to IRDAI on the issues of Amount of premium being charged, Loading charges, Amount of coverage and Period of Exclusion for Pre-Existing Diseases.

In terms of order dated 17th March, 2023, the following compliances were to be undertaken by IRDAI:

 i. IRDAI was to take a decision on the representation by the Petitioner and issue directions by 15th April, 2023; 
ii. IRDAI was to convey the decision on the representation of the Petitioner by 30 th April, 2023; 
iii. IRDAI was to notify all the insurance companies to submit their products in terms of circular dated 27th February, 2023 along with model policy and file a status report. 

Pursuant to the said order, an affidavit has been filed by the Deputy General Manager of the Health Department of IRDAI wherein the deponent states as under: 

“2 That after the issuance of circular dated 27.02.2023, all the general and standalone health insurance companies have filed their products for Persons with Disabilities (PWD), Persons afflicted with HIV/AIDS and those with Mental illness with Answering Respondent/IRDAI under the “Use and File” procedure dated 01.06.2022. It is respectfully submitted that as per Use and File circular insurers are not required to obtain any prior approval for launching and marketing their insurance product. Copy of the Use and File circular dated 01.06.2022 is annexed as Annexure A. 

3 That in compliance of the Circular dated 27.02.2023, all general and standalone health insurance companies have also launched their products for Persons with Disabilities (PWD), Persons afflicted with HIV/AIDS and those with Mental illness a list containing the details of products launched in accordance to Circular dated 27.02.2023 is annexed as Annexure B.”

In terms of the above averments made in the affidavit, the various general and health insurance companies including the four Government insurance companies namely New India Assurance Company, United India Insurance Company Ltd, Oriental Insurance Company Ltd. and National Insurance Company Ltd. have launched products for persons with disabilities. The complete list of 29 companies who are stated to have launched their insurance products for persons with disabilities, has been reproduced in a table in the below judgement.

From the said table, it is clear that several insurance companies have launched products for PwDs. However, in respect of the products which have been launched, the Petitioner raises some objection qua the high insurance premium and the loading charges, that is being charged. The said consideration of the amount of premium of any company’s specific product would be beyond the scope of this writ petition. It is, however, observed that if any person insured is having a grievance on the amount of premium being charged, remedies in accordance with law are available to such persons. The Petitioner is given liberty to approach the concerned authority if he so desires. This Court however, would reiterate the decision of the Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 SCC OnLine SC 84, which has also been considered by this Court in Akshat Baldwa & Ors. v. Yash Raj Films & Ors., 2023:DHC:345 wherein the principle of reasonable accommodation has been highlighted to ensure that society and indeed the state, can provide additional support and facilities that are necessary for persons with disabilities to lead a life of equal worth and dignity.

The court furhter made clear that the merits of each and every product launched and whether the charges are reasonable or not has not been considered by the Court and the same was left open for consideration by any appropriate forum, which may adjudicate a challenge to the same. 

The IRDAI, being the sector regulator would also have an obligation to ensure that PwDs are not unduly prejudiced and give suitable directions to insurance companies, after reviewing the products launched. 21. Insofar as the decision of the IRDAI qua the Petitioner is concerned, the decision is stated to have been taken by the IRDAI on 19th April, 2023. The said decision of the IRDAI has been placed on record. The challenge to the decision is on the following aspects: 

i. Amount of premium being charged and loading charges imposed on the Petitioner etc. 
ii. Amount of Coverage iii. Period of exclusion for pre-existing diseases 

"The IRDAI’s decision is detailed and reasoned. The Petitioner has already availed of the policy in terms of the order dated 17th March, 2023. The Petitioner is free to avail of his remedies in accordance with law in for any outstanding grievances qua this decision of the IRDAI dated 17th April, 2023." observed the court.

This Court appreciated the assistance given by the parties and their Counsels, in ensuring that insurance products for persons with disabilities have been launched in India. The court admitted that the while the said products may not be the most ideal for persons with disabilities, this would merely be a first step in the process of achieving Equality for PwDs, which is the solemn intent of legislations including the Right of Persons with Disabilities Act, 2016. 24.  And the court thus disposed of the petition accordingly.

Here is the detailed judgement:  

Saturday, August 5, 2023

Karnataka HC issues notice to Centre on a PIL challenging exclusion of disabilities as a variable from National Family Health Survey

Court: Karnataka High Court, Bangaluru

Bench: Hon'ble Chief Justice Mr. Prasanna B. Varale and Hon'ble Justice M.G.S. Kamal 

Case No.:  WP (C) 14180 of 2023

Case Title: Javed Abidi Foundation Vs. Union of India (Min. of Health & Family Welfare)

Date of Order: 04.08.2023

Brief of the case 

The petitioner Javed Abidi Foundation has sought a direction to the Ministry of Health and Family Welfare to include the 21 disabilities mentioned in the schedule to the Rights of Persons with Disabilities Act (RPwD), 2016 as a variable in the household survey questionnaire of the NFHS-6 while pointing out that disabilities was a variable in the NFHS-5.

Quoting various media reports, the petition claimed that the disabilities were excluded from NFHS-6 on the advise of a Technical Advisory Committee citing two reasons - enumerators were not trained nor qualified to ask about and evaluate disability; and enumerating disability as a variable was a time-consuming and laborious process.

The petitioner has argued that the reasons cited to exclude disabilities are unjustifiable in the light of Article 31 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which states that it the right of persons with disabilities to be part of any data collection exercise and all data about disability should be disaggregated so that persons with disabilities can get the maximum advantage of any schemes and other programmes meant for their welfare. The exclusion also violative of the provisions of the RPwD Act, the petition has complained.

The PIL also disputes the claim of the Union Health Ministry that the disabilities has been already enumerated during the 76th round of the National Sample Survey of 2018 and there would be no change in those figures. The Ministry’s response to petitioner stating that the NFHS-5 contained questions in  the questionnaire on disabilities on the advise of Department of Empowerment of Persons with Disabilities, and the primary focus of NFHS is maternal and child health and other questions with a very shorter version of the question will not be advisable.

The court passed the following order:

"The learned counsel for the petitioner invited our attention to Annexure-P1 and submits that though it is stated by respondent No.5 that it will not be able to collect accurate data on disability in its concurrent form and the primary focus of NFHS is maternal and child health, there are no grounds or reasons forthcoming as to why respondent No.5 is not in a position to collect the data on disability when such an exercise was undertaken by the very respondent in the year 2019.

Issue notice returnable within four weeks.

Sri Madhukar M. Deshpande, the learned counsel accepts notice for respondent No.1."

The PIL has made following prayers in the writ and interim relief:

Writ prayers

a) issue a writ in the nature of certiorari quashing the memorandum dated 14/06/2023 bearing reference number no.y.12011/3/2020-stats at Annexure-M is issued by the 2nd respondent stating unsustainable grounds for exclusion of disability from NFHS 6.

b) issue a writ in the nature of mandamus directing the respondents to include the 21 disabilities mentioned in the schedule to the Rights of Persons with Disabilities Act, 2016 as a variable in the household questionnaire for the national family health survey 6 as per the petitioners and several other representations to the respondents.

c) issue a writ in the nature of mandamus directing the respondents to consider the representations of the petitioner at annexures-d, e, f, k and l and to expeditiously consider his appeal at annexure-q.

d) pass such orders (s) or issue such other writ (s). 

Interim prayer

issue orders to the respondents in the nature of directions to introduce a questionnaire on disabilities by way of addendum that is similar the questionnaire on disabilities introduced in NFHS 5 so as to include all the 21 disabilities mentioned in the schedule to the rights of persons with disabilities act, 2016 as a variable in the household questionnaire for the national family health survey 6.

Wednesday, August 2, 2023

Delhi HC summons Health Secretary, says it is unfortunate that permanent State Mental Health Authority not constituted till date.

Court: Delhi High Court

Bench: Hon'ble Chief Justice Satish Chandra Sharma and Hon'ble Justice Sanjeev Narula 

Case No: W.P.(C) 6952/2019 & tagged case: W.P.(C) 4468/2021

Case Title:  Amit Sahni Vs. Govt of NCT of Dellhi & Ors  and tagged case- Shreyus Sukhija Vs. Govt. of NCT of Dlehi & Ors.

Act: Mental Healthcare Act 2017

Date of Order: 02 Aug 2023

Next Date of Hearing: 15.09.2023


Observing that it is unfortunate that the permanent State Mental Health Authority under Mental Health Act, 2017, has not been constituted till date in the national capital, the Delhi High Court has asked Delhi Government’s Health Secretary to remain present before it on September 15, 2023.

“It is made clear that in case the permanent State Mental Health Authority is constituted as per the requirement of Sections 45 & 46 of the Mental Healthcare Act, 2017, the personal appearance of the Secretary (Health), GNCTD, shall be dispensed with without further reference to the Court,” the division bench said in its order dated 02 Aug 2023.

The bench also directed the Delhi Government to comply with the statutory provisions under the Mental Healthcare Act, 2017 and the Mental Healthcare (State Mental Health Authority) Rules, 2018, including constitution of district mental health authorities.

In November 2022, the court was informed by Delhi government’s counsel that the process for reconstitution of State Mental Health Authority is underway and shall be finalised soon. However, since the same was not done, the court made the above observations.

The court was hearing a public interest litigation filed by Advocate Amit Sahni seeking effective implementation of Mental Healthcare Act, 2017. It is his case that the lack of mental health authorities is adversely affecting the treatment of mentally ill persons.

Another plea tagged with the PIL has been moved by man seeking reconstitution of the State Mental Health Authority and also for setting up of Mental Health Review Boards as provided under the Mental Healthcare Act 2017.

Read the Order below: