Tuesday, July 13, 2021

Madras HC rejects the argument that victim’s evidence could not be relied upon since she was blind

Madras High Court, rejecting the argument of the petitioner that victim’s evidence could not be relied upon since she was blind, said, “The victim as a blind lacks vision, but her version had vision and hence, this court holds that the evidence of the victim is admissible in evidence.”

According to the prosecution, auto driver Anbu Selvan was hired to transport the victim to her music class. However, he kidnapped her to a secluded location and sexually harassed her besides trying to kill her if she did not cooperate.

Challenging a trial court order awarding a seven-year jail term to him, Anbu Selvan moved the high court. Justice R M T Teekka Raman, however, termed Anbu Selvan as a ‘heartless person’ who had capitalised on the helpless situation of the visually challenged person and sexually assaulted her.

He is not entitled to reduction of sentence, not even for a single day, the judge asserted. Citing circumstantial and other evidence, the judge said, “Merely because of the disability, evidence of disabled persons cannot be treated as inferior in nature.”

Anbu Selvan had also argued, “The identity of the accused was not proved in the manner known to law and since the witness (victim) is a blind, her evidence cannot be termed as eye witness if at all, can be termed only as a hearsay witness which is inadmissible in evidence.”

The trial court convicted him for offences under sections 366 (kidnapping a woman), 354 (Assault or criminal force to woman with intent to outrage her modesty), 506 (ii) (Criminal intimidation) of the IPC and Section 4 (harassment of woman) of the Tamil Nadu Prohibition of Woman Harassment Act primarily based on the evidence of the victim woman.

Merely because a victim of sexual harassment had visual disability, her evidence against the culprit cannot become inadmissible, said the court, awarding seven-year imprisonment to an autorickshaw driver who assaulted the woman. The court then recommended the Tamil Nadu State Legal Services Authority to grant Rs 1 lakh as compensation to the victim under the Tamil Nadu Victim Compensation Scheme.


Monday, April 5, 2021

USA: Justice Department moves unopposed motion to intervene as Plaintiff in a Disability Discrimination Suit Against City of Chicago Regarding Pedestrians with Vision Disabilities

Dear Colleagues,


This is a disability rights enforcement action by the Justice Department of United States of America against the City of Chicago, seeking to remedy the city’s failure to provide people who are blind, including those who are deaf-blind or have low vision, equal access to pedestrian safety information at intersection crossings, which the city provides almost exclusively through visual-only pedestrian signals.  The United States has sought declaratory, injunctive, and compensatory relief for this violation of Title II of the Americans with Disabilities Act of 1990. 


Having moved an unopposed motion to intervene as a plaintiff in this disability discrimination lawsuit filed by private plaintiffs American Council of the Blind of Metropolitan Chicago, Ann Brash, Maureen Heneghan and Ray Campbell against the City of Chicago under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), the Department of Justice found in its investigation that the allegations were true.


The complaint alleges that the city of Chicago fails to provide people who are blind, have low vision, or are deaf-blind with equal access to pedestrian signal information at intersections. Pedestrian signal information, such as a flashing “Walk/Don’t Walk” signal, indicates when it is safe to cross the street. 


Accessible pedestrian signals (APSs) are devices that provide pedestrians with safe-crossing information in a non-visual format, such as through audible tones, speech messages, and vibrotactile surfaces. Since at least 2006, Chicago has recognised the need to install APSs for pedestrians with visual disabilities. Yet, while Chicago currently provides sighted pedestrians visual crossing signals at nearly 2,700 intersections, it has installed APSs at only 15 of those intersections. 


Thus over 99% of Chicago’s signalised intersections subjects people who are blind, have low vision, or are deaf-blind to added risks and burdens not faced by sighted pedestrians, including fear of injury or death which in contravening the ADA and Section 504 that require that individuals with disabilities have equal access to public services, including access to pedestrian crossing information that is critical for safety and for full participation in community life.


Petition seeks to ensure that Chicagoans with disabilities are provided equal access to city services, particularly those services whose purpose is public safety.


The motion and complaint seeking intervention were jointly filed by the Disability Rights Section of the department’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of Illinois. Access the proposed motion to intervene at this link: https://www.ada.gov/acbmc/acbmc_motion.html.



Thursday, October 29, 2020

Mumbai High Court declares BMC circular illegal, directs payment of full salaries to disabled employees for absence during pandemic period

Dear Colleagues,

Please refer to my earlier post  'NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown' detailing the public interest litigation filed by the National Association of Blind after the civic body did not pay full salaries to the 268 visually impaired employees.

Accepting the petitioner's contention that the country’s richest civic body had shown “its inhuman an insensitive face, much to the detriment and prejudice of its physically disabled employees” the Division Bench of Chief Justice Dipankar Datta and Justice G.S. Kulkarni of the Bombay High Court, in their 63-page judgment passed on 28th October 2020 (Wednesday),  has held that the BMC's circular and its action of withholding pay during the pandemic were illegal and said, "we direct the corporation to ensure that none of the physically disabled employees, who did not report for duty during the pandemic are denied pay benefits “which they would have been entitled to, but for the pandemic and had they reported for duty”.

On 27 March 2020, the central government through an OM issued by DoPT exempted all government employees with disabilities from reporting for duty during the lockdown saying, "“All ministries and departments are advised to exempt persons with disabilities (PwD) from duties while drawing up roster of employees required to attend to essential services”.

Similar directions were issued by the Maharashtra government on 21 April 2020 exempting disabled employees from attending offices and that the period of absence may be treated as Special Leave without loss of pay. 

On May 2, the BMC announced that its disabled staffers were entitled to a special leave without loss of pay. But, on May 26, it issued a circular  that it was not a special leave, but a permissible leave which requires sanction and involves a pay loss. The circular directed that its disabled employees be given leave which is permitted under the Municipal Services Act. Under this, if these employees have used up sanctioned leaves, they will not get a salary if they don’t report for work. The BMC has nearly 1,150 physically disabled employees, including 278 visually impaired.

The judges noted that while the BMC initially favoured exemption, a “change of mindset resulted in revision of its earlier decision” and it was not backed by tangible evidence of physically disabled employees not facing inconvenience or discomfort while travelling to their workplace or “reference to any incident that could act as a trigger for such decision”. “If the civic body was not inclined to offer financial benefits, like pay physically disabled employees who do not report for duty, it was its duty as a model employer to make special arrangements for public transport or special measures to ensure hassle-free travel for these employees...”

The judges added that the right to free access is a right guaranteed by the Right of Persons with Disabilities Act 2016. Although it casts a duty on the state, nothing prevented the BMC as local authority from taking suitable measures for its physically disabled employees.

The judges said the BMC’s ‘flip-flop’ has intrigued them and there was no explanation for it. “This volte-face deserves to be viewed seriously and disapproved strongly.” 

The court said, “The circular requires judicial intervention. The circular and its action of withholding pay is held illegal.”  The Bench said that the payment must be made in two instalments, the first must be paid before Diwali and the second must be paid within 45 days from the date of the first instalment.

Watch out this space for the PDF Judgement soon...

Wednesday, October 21, 2020

Manhattan Federal Judge Paul Engelmayer rules "NYC has violated the ADA by not installing accessible pedestrian signlas for the blind."

Dear Colleages, 

A federal lawsuit, brought by the the American Council of the Blind in 2018, sued NYC Govt. on behalf of plaintiffs Michael Golfo and Christina Curry, claiming that out of the city’s 13,000 pedestrian traffic signals, just over 2 percent conveyed information in a way that is accessible to blind pedestrians. 

The lawsuit argued that the city’s Department of Transportation violated the Americans with Disabilities Act by neglecting to add audible features to crosswalk signals that let visually impaired people know when they have the traffic signal. There are about 205,000 blind or otherwise visually-impaired people who live in the city and face this inaccessible and hostile environement. 

The arguments have found favour with the District Judge Paul A. Engelmayer and on 20 Oct 2020, the court ruled  the current “near-total absence” of accessible crossing information violates the ADA and the Rehabilitation Act of 1973, the federal disability law that preceded the ADA.

The tuesday ruling notes that blind pedestrians in New York will typically stop at the curb and assume they are at a point where they can cross the street. Without any accessible indicator of a crossing, however, blind pedestrians cross somewhere other than the crosswalk 30 percent of the time. This leaves them to rely on other auditory cues, which is prohibitively difficult with New York’s level of ambient noise. 

In particular, Engelmayer ruled the city had failed to equip traffic signals with accessible pedestrian signals — APS for short — which include alarms or other audible alerts. The Court held that the absence of non-visual crossing information at more than 95% of the City’s signalized intersections denies plaintiffs meaningful access to the City’s signalized intersections and the pedestrian grid, in violation of the ADA and Rehabilitation Act,” Engelmayer wrote.

“The Court further holds that some, but not all, of the City’s projects with respect to traffic signals gave rise to a duty under these statutes to add APS [Accessible Pedestrian Signals]—a duty that the City has largely breached.”

The Court ordered  the NYC lawyers to seek an agreement with petitioners to make more intersections safe for pedestrians who cannot see. The two sides must submit a letter to the court by Oct. 30 laying out a path forward to come to a resolution, which could include benchmarks and deadlines for adding APS to street signals.   Though, the court's ruling itself does not specify how many signals must be installed.

Mayor de Blasio spokeswoman Laura Feyer said the city is already working to expand accessibility for blind people at crosswalks — but declined to provide a timeline for the installation of more infrastructure to make good on the judge’s ruling. 

“The city is dedicated to making our streets more accessible to all New Yorkers with and without disabilities, including those who are blind or have low vision,”  “We will continue to install APS across the city and are consistently working to increase access for the blind and low vision community in all facets of life.”  said Feyer.

Sources: 

1. pressfrom dot info

2. NYDailyNewsdotcom







Monday, September 28, 2020

NAB takes the BMC to High Court for denying full salaries to disabled and older employees during lockdown

Dear Colleagues,

National Association of Blind (NAB) Mumbai has dragged the Brihanmumbai Muncipal Corporation (BMC) to the Mumbai High Court in a public interest litigation (PIL) which seeks payment of full salaries to 278 visually impaired BMC employees for the period when the lockdown was implemented in its strictest form – March 23 to June 30.  

An affidavit opposing the PIL signed by Vishwanath Jadhav, joint chief personnel officer of the establishment section of the BMC’s General Administration Department,  says that paying full salaries to these employees will adversely affect its finances.

It was learnt that the BMC denied full salaries for the strictest lockdown phase to not just its visually-impaired employees, but also to the physically disabled and those above 55 years of age, who were exempted from attendance on health grounds, the affidavit indicates. 

The affidavit, defending BMC’s decision to not pay full salaries to the visually impaired employees, refers to the money “the BMC may have to pay” to the physically disabled as well.

It says, “If these categories of employees are granted special leave without loss of pay, the respondent corporation will be required to pay approximately Rs12.22 crore (Rs 2.75 crore for visually impaired employees and Rs 9.47crore for other disabled employees).”

The next sentence specifies another category of employees which may seek parity from the BMC if the court were to ask it to pay salaries for the same period to the disabled employees.

The affidavit says, “Similarly, the corporation has granted relaxation in attending duties to approximately 283 employees beyond 55 years of age having health issues such as diabetes, high blood pressure and dialysis (for kidney ailments). Similar demand will be raised by these categories of employees, even though they are not eligible, and if they are to be treated according to the same principle, then the corporation will have to pay approximately Rs 422.59 crore, which will adversely affect its financial condition.”

Appearing for the NAB, advocate Uday Warunjikar,  submitted before the court that BMC had nullified its liability to the visually impaired employees with retrospective effect, as its directive issued in March, only exempted these employees from attending offices. However, a directive issued on May 26, 2020 said that the relevant period will be treated as “permissible leave.”

He said that while he had details of only one employee at the time of filing the PIL, the NAB had managed to get details of more than 25 employees to show that it wasn’t just the salary for the relevant period, which was affected, but the situation continues as the BMC was recovering “arrears” of salary deductions from them, forcing them to work on zero or extremely low pay.

The PIL cites the directives of the state government as well as the Centre since March 2020 to show that they had exempted disabled employees from attendance and one such directive said that they be treated on “leave without loss of pay.”

Senior Advocate BV Bukhari, appearing for the BMC, submitted that the BMC was not bound by the resolutions or notifications of the state or the Central government, as it was a local self-government body.

He said that the BMC was not only following the Rights of Persons with Disabilities Act, but, in fact, was doing more than what other governments were doing.

The court, however, questioned the BMC’s assertion that it was not bound to follow the notifications of the state or the Central government, saying it was doing so in certain other aspects related to the pandemic. 

The bench has reserved its judgement on the PIL. 

Update (29 Oct 2020):

....... Read subsequent post on the PIL judgement here:  "Mumbai High Court declares BMC circular illegal, directs payment of full salaries for absence during pandemic period"


Thursday, August 27, 2020

Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities [Judgement Included]

Dear Colleagues,

This judgement by a single bench of Kerala High Court at Ernakulam Bench sets a long pending issue to rest whether private aided education institutions come under the term "establishment" and are bound to follow the mandate of reservation of jobs. There were several writ petitions tagged to the present case with similar prayers. Many educational institutions seeking protection of 'minority' institution have been defying the law of the land regarding reservation in jobs for persons with disabilities despite being funded by the State claiming that they don't need to reserve or fill up seats by persons with disabilities as they are not 'state'. 

Petition was finally heard on 22 July 2020 and judgement delivered on 26 Aug 2020. The lead case has been WP(C).No.4753 OF 2020(T) Renjith J.V. Vs. State of Kerala and Others. Other petitions tagged were all from the year 2019 i.e. WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).  

The Rights of Persons with Disabilities Act 2016 only supplements and enhances the earlier reservation of 3% to now 4% and must be implemented in right earnest. There is a need to raise awareness, break the stereotypes and ensure that the private institutions are made aware of their legal responsibilities before they are sanctioned the government aids and grants.

Read the Judgement embedded below or Download Judgement. WP(C).No.4753 OF 2020(T) 


Thursday, July 30, 2020

Delhi HC seeks response of All States & UTs on PIL by NFB for Food grains to Disabled under Various poverty alleviation Schemes [Order Included]

New Delhi, 30 Jul 2020

Delhi High Court on 29 Jul 2020 sought response of all the states and union territories on a PIL seeking directions to them and the Centre to provide benefits of the various food security and poverty alleviation schemes to persons with disabilities (PWDs). The PIL is titled as W.P.(C) 3976/2020 National Federation of Blind Vs. Union of India & Anr.

A bench of Chief Justice D N Patel and Justice Prateek Jalan issued notices to all the states and union territories (UTs) seeking their stand on the plea after they were also impleaded as parties in the petition by National Federation of Blind (NFB).  The high court listed the matter for further hearing on August 13.

Earlier,  the Bench had issued notices to Union of India (Min. of Consumer Affairs- Respondent 1) and DEPWD (Responder 2) on 07th July 2020 returnable on 22 Jul 2020, when this PIL seeking 5% reservation in all poverty alleviation schemes and food-grains to people with vision impairment and other disabilities under various poverty alleviation Schemes was filed by the NFB.

Counter Affidavit of DEPWD (Respondent-2).

Department of Empowerment of Persons with Disabilities, Ministry of Social Justice & Empowerment, i.e. the 2nd respondent submitted the following in its counter affidavit-

“The Central Government has enacted the Rights of Persons with Disabilities Act, 2016 (RPwD) and the rules thereto in 2017. As per Section 37 (b) of the RPwD Act, 2016, the appropriate Governments are required to frame schemes and programmes in favour of Persons with Benchmark Disabilities (benchmark disability means disability of 40% or more) to provide for 5% reservation in poverty alleviation schemes and development schemes giving priority to women and benchmark disabilities.

The food security programme under the National Food Security Act, 2013 is mainly aimed at uplifting of the poor and hence construed as a poverty alleviation programme. Therefore, the provision of reservation as per Section 37 (b) of the RPwD Act mandating of 5% in food security is applicable.

As per Section 96 of the RPwD Act, the provisions of the Act shall be in additional to, and not in derogation of the provisions of any other law for the time being in force. Therefore, the provisions of the RPwD Act, 2016 have to be read with the relevant section of the National Food Security Act, 2013 for ensuring synergetic implementation of both the Acts. The benefit of 5% reservation in food security programme can be extended to the persons with benchmark disabilities on the basis of certificate of disability issued by the competent medical authorities of the States/UTs.

It may be mentioned that as per allocation of Business Rules 1961, notified by Cabinet Secretariat, Government of India, "the Department of Empowerment of Persons with Disabilities is the nodal Department of overall policy, planning and coordination of programs for Persons with Disabilities. However, overall management and monitoring etc. of the sectoral programs in respect of this group shall be the responsibility of the concerned Central Ministries, State Governments and Union Territory Administrations. Each Central Ministry or Department shall discharge nodal responsibility concerning its own sector." Therefore, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, Government of India being nodal authority for ensuring implementing food security programmes need to take appropriate measures in line with provisions of the RPwD Act, 2016. "

Hearing on 22nd July 2020

Mr. S. K. Rungta, General Secretary of the petitioner had argued that as per the provisions of Section 37(b) of the Rights of Persons with Disabilities Act, 2016 (the Disabilities Act), a reservation of 5% has been provided to persons with disabilities in all poverty alleviation and various developmental schemes. He further submitted that poverty alleviation schemes enacted under any law for the time being in force are also covered under Section 37(b) of the Disabilities Act.

He had further argued that the Pradhan Mantri Garib Kalyan Anna Yojana and schemes established under the National Food Security Act, 2013 are also poverty alleviation schemes and, therefore, covered under Section 37(b) of the Disabilities Act. He had submitted that under Section 24(1) of the Disabilities Act, the benefit of Pradhan Mantri Garib Kalyan Anna Yojana should be extended and made applicable to all the persons who are covered under the Disabilities Act, 2016, whether or not they have ration cards. He had requested that when such persons come to collect their ration for the first time, the relevant formalities may be completed for issuance of ration cards to them at the earliest to enable them to get their ration next time under the scheme.

The petitioner had sought directions to the Centre to ensure that states and Union Territories provide benefits of welfare schemes, like Pradhan Mantri Garib Anna Kalyan Yojana, to PWD also during the COVID-19 pandemic.

Remarks of the Bench on 22 Jul 20
The bench, on the last date of hearing on July 22, had remarked that Persons with Disabilities have been excluded from welfare schemes "from time immemorial". The bench had observed, "Fact that persons with disabilities get marginalised from every scheme does not require a debate".

The Central Govt. Counsel had sought time to seek instructions and the matter was fixed for 29 Jul 2020.

Response of The Ministry of Consumer Affairs  (Respondent-1)

Respondent-1 filed its response to the PIL and contended that the National Food Security Act (NFSA) is neither a poverty alleviation nor a development scheme. It said that unlike the targeted Public Distribution System (PDS), which was based on poverty levels, NFSA uniformly covers 67 per cent of the total population in the country. NFSA not only covers the Antyodaya Anna Yojana (AAY) but also the below poverty line and a certain portion of the above poverty line category.

The ministry of Consumer Affairs stated in its affidavit that all the beneficiaries are provided foodgrains at the same issue price. The NFSA has been therefore delinked from the poverty estimates.  It also stated that disability as an eligibility criteria already exists in the AAY guidelines and majority of the states and UTs have included it for identification of beneficiaries and priority households under NFSA.

"Notwithstanding this, the central government has further issued directions to all state governments on July 24 to ensure coverage of all disabled persons. This was reiterated over video conference with the states on July 24, 2020," the affidavit said. It also said that 5 Kg foodgrains per month for two months i.e. May and June 2020 was provided to about 8 crore migrant labour, who are not covered under NFSA or state scheme PDS cards, at a cost of Rs 3,500 crore and the validity of the scheme has been extended till August 31.

Therefore, "disabled persons can be covered under this scheme" and they can avail its benefits for the months of July and August without a ration card, the ministry has said.

Arguments

The petitioner has contended that Persons with disabilities are neglected when reliefs under various food security measures are implemented as most of them do not have ration cards. The central government had earlier told the court that ration cards are required under NFSA to provide food grain to over 80 crore people and compartmentalising them under various categories, including disabled, makes it difficult to identify the priority households.

The Centre had also claimed that it is the responsibility of the states and UTs to identify priority households. NFB has contended that under the PWD Act of 1995, a 3 per cent reservation was provided for all disabled persons in poverty alleviation schemes and this was increased to 5 per cent under the RPWD Act of 2016.

Therefore, the government should ensure that at least 5 per cent of the beneficiaries for foodgrain under the schemes like, Antyodaya Anna Yojana and Pradhan Mantri Garib Anna Kalyan Yojana, are persons with disabilities. It has also said that most of the PWDs are in institutions as they are neglected by their families and such institutions do not provide an address proof to their inmates and therefore, they are unable to get ration cards.

The petitioner said that under the NFSA, the Centre has to ensure States and UTs identify the PWDs who are eligible for foodgrains under the various schemes and to provide the same to them. The petition has sought a direction to the Centre to "consider the cases of persons with disabilities and visually impaired persons even without ration cards on the basis of their disability certificates and/ or Unique Disability ID (UDID) for getting benefit under National Food Security Act" and the Pradhan Mantri Garib Anna Kalyan Yojana.

Besides that, it has also sought that foodgrains be provided free of cost to poor persons with disabilities  as was done for migrant labourers and others during the present pandemic.

Next Date of hearing:
After issueing notices to various States and UTs seeking their response, the matter is now listed for further hearings on 13 August 2020.

Download Court Orders : 

W.P.(C) 3976/2020  | National Federation of Blind Vs. Union of India & Anr

07 Jul 2020   - Notice Issued
22 Jul 2020   - Arguments on Counter Affidavits & Court's observations
29 Jul 2020   - Notice to All Stats & UTs
13 Aug 2020 - Next hearing...


Wednesday, July 29, 2020

Landmark licence review triggered after RNIB, UK complained against refusal to allow entry in restaurant to a blind man with his guide dog

A blind man who was refused entry to a restaurant with his guide dog has instigated a landmark licence review which could set a precedent for disability training in the hospitality industry.

Artur Ortega said managers at Manjal in Canary Wharf told him he could not dine if he wanted to bring his trained dog Mercer inside.

Under the Equality Act, guide dog and other assistance dog owners have the right to enter most premises and vehicles with their animals. READ the guide in PDF Here.

The Royal National Institute of Blind People (RNIB) complained to Tower Hamlets Council on Mr Ortega’s behalf. It has triggered a licensing review, believed to be the first of its kind for a restaurant in the UK. The charity wants conditions added to the diner’s licence, which will ensure staff have to go through training so they know the rules around discrimination against service dog owners.

Jack Holborn, the lawyer the charity has employed for the review, said they do not want to see Manjal, which has since moved to nearby Marsh Wall, lose its licence, but added: “The law is already very clear. What we are asking for is that restaurant staff have training to ensure things like this do not happen. We would like to see this added to all premises’ licences.”

Samantha Fothergill, of the RNIB, said: “This is an area where local authorities can and must use their licensing powers to stamp out this practice. We believe licensing powers can be used to require staff to be trained, to require the display of a sticker welcoming assistance dogs and, ultimately, to revoke licences where refusals happen.”

Mr Ortega, a software engineer, and his colleagues were refused entry to the Indian restaurant last July.

Ms Fothergill said: “When Mr Ortega complained, the manager was called but he also confirmed guide dog Mercer was not welcome. The manager told Mr Ortega that not everyone liked dogs and that he should show some understanding of Asian culture.” Mr Ortega said when the table was booked he had explained he was bringing a guide dog and he told staff that under the Equality Act he was allowed to bring Mercer inside. He said: “I felt completely humiliated to be discriminated against in such a rude way.”

He added that he had been to Manjal before with Mercer and had not been turned away. Naveen Bhandari, from Manjal, later wrote a letter to Mr Ortega apologising for the incident and offered the group a complimentary meal.

He said managers had realised their mistake and were going to allow Mr Ortega to dine there — but in the 15 minutes while they were preparing a table for him he had left.

Related news: Standard dot co dot UK 

Thursday, July 16, 2020

Himachal HC to Doctors - Stop the practice of issuing Disability Certificates that can't stand legal scrutiny [Judgement included]

Dear Readers,

Finally the Judiciary has cracked the whip on the medical doctors who have been silently issuing Disability Certificates for a long time with a caveat added through a note - "This certificate is not valid for medico-legal purposes." Some have been writing on top or bottom of the Disability Certificate that "This certificate would not be valid for court cases or for claiming compensation."

The Himanchal Pradesh High Court has taken a serious note of this anomaly while hearing a case of a lecturer Ms. Kanchan from Sirmaur who had challenged her transfer. While the court found no merit in her petition, but during the course of the hearing, it was argued by the respondents that petitioner's  disability certificate issued by a chief medical officer, included a note which said the certificate would not be valid for court cases and for claiming compensations hence, it was not valid in the eyes of law.

The division bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua then directed medical officers in the state against issuing certificates which are not valid in a court of law, terming such certificates “nothing short of being false and fabricated”. The court observed that a number of medical officers issue certificates to patients or people with disabilities with a note that the certificate would not be valid for court cases or for claiming compensation.

“It is high time that there is an end to this practice. Or else, it would give impetus to medical officers whether they be government doctors or private practitioners to issue such certificates which have no judicial relevance and are inadmissible, and are, thus, nothing short of being false and fabricated certificates which can be grossly misused,”  the Bench observed.

“We are convinced that this note has been appended only with the intent that the officer issuing the certificate may not be hauled up before the court or tribunal, if eventually such a certificate is found to be false in whole or in part. The court cannot approve this,” the court noted.

The Bench directed the Additional Chief Secretary (Health) to look into the matter and issue instructions to end the practice within four weeks.

Download the Court Judgement:  Court website link | Google Drive link

Himachal HC | Kanchan Versus State of H.P. & Ors | CWP No. 1915 of 2020 | 15 Jul 2020




Sunday, July 12, 2020

Supreme Court confirms that people with disabilities are socially backward hence entittled to get relaxations available to SC/ST

Dear Colleagues & Readers,

Hon'ble Supreme Court of India, in a significant decision, has confirmed that persons with disabilities are also socially backward, hence, are  entitled to the same benefits of relaxation as Scheduled Caste/ Scheduled Tribe candidates in public employment and education.

The three-judge Bench led by Justice Rohinton Nariman was hearing an appeal filed by Aryan Raj, a person with disability, against the Government College of Arts, Chandigarh. The college had refused relaxation in minimum qualifying marks in the Painting and Applied Art course insisting that persons with disabilities too need to meet the general qualifying standard of 40% in the aptitude test, whereas SC/ST candidates were given a relaxation to 35%.

Setting aside the college decision, the Supreme Court declared that Scheduled Caste/Scheduled Tribe candidates require 35% to pass in the aptitude test, the same shall apply so far as the disabled are concerned in future.” The bench also allowed the petitioner Aryan Raj to apply afresh for the current year.

The SC Bench upheld a 2012 judgment of the Delhi High Court in Anamol Bhandari  v. Delhi Technological University case (Refer to my earlier post "Disabled Students must get same admission benefits as SC/ST, rules Delhi HC" discussing about the Judgement dated 12 Sep 2012 in the Writ Petition (C) No.4853 of 2012 Anamol Bhandari (minor) through his father/Natural Guardian Versus Delhi Technological University.)

The bench referring the 2012 judgeement said in its order, "…we follow the principle laid down in the Delhi High Court’s judgment in Anamol Bhandari (Minor) through his father/Natural Guardian v. Delhi Technological University 2012 (131) DRJ 583 in which the High Court has correctly held that people suffering from disabilities are also socially backward, and are therefore, at the very least, entitled to the same benefits as given to the Scheduled Castes/ Scheduled Tribes candidates."

The bench also highlighted the Delhi HC 2012 judgement ibid on the need to craft new academic courses to specifically cater to the needs of people with intellectual disabilities. The judgement quotes,  “We cannot lose sight of the fact that intellectually/mentally challenged persons have certain limitations, which are not there in physically challenged persons. The subject experts would thus be well advised to examine the feasibility of creating a course which caters to the specific needs of such persons. They may also examine increasing the number of seats in the discipline of Painting and Applied Art with a view to accommodating such students.”

Wide Ranging Implications for Persons with Disabilties: 

While age relaxations are currently given to persons with disabilities in admissions to educational courses and in employment, however, the relaxations will also now be extended in qualifying marks. This will also impact the coveted examls like Civil Services where the number of attempts to persons with disabilities are currently equated with those available to OBCs. This will open up relaxations to them as available to SC and ST. Thus this would be a more enabling provision for this segment who have often been faced with challenges of inaccessibility and attitudinal biases.  This also set to change all public sector employments and admissions to high education courses.

Download the judgement: 

Aryan Raj Vs. Chandigarh Administration & Ors. Civil Appeal No. 2718 of 2020 dated 08 July 2020

or read below: