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.