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...

Delhi High Court Order on recognition of Indian Sign Language as one of the Official Languages

Court: Delhi High Court

Bench: Justice D.N. Patel and Justice C. Hari Shankar

Case No. :WP(C) No. 9546/2018

Case Title: Nipun Malhotra Vs. Union of India

Date of Decision: 09 July 2019

Authored by: Justice DN Patel

 Download:   [PDF 1 MB]

Delhi HC - JNU should work out the mandate of the RPWD Act, so that every person with disability, who qualifies get admission. [Judgement Included]

Court: Delhi High Court

Bench:  Hon'ble The Chief Justice  and Hon'ble Mr. Justice V. Kameswar Rao

Case No.: W.P.(C) 3817/2018

Case Title: National Federation of Blind Vs. Union of India

Date of Judgement: 12 Nov 2018

Cases refereed:

• Sambhavana v. Union of India and Ors. W.P.(C) 3919/2014 decided on March 4, 2015;
• Students Federation of India and Ors. v. Union of India and Ors. W.P(C) 3032/2017 decided on October 1, 2018 
• and the Supreme Court in the cases of Justice Sunanda Bhandare Foundation v. Union of India (UOI) and Ors. (2017)14 SCC 1; Union of India and Ors. v. National Federation of Blind and Ors. 2013 10 SCC 772,

Brief:

The petition is filed seeking relief that the selection to M.Phil / Ph.D and Ph.D. courses in respondent Jawahar Lal Nehru University (JNU) has to be on relaxed standards and on the basis of the marks obtained both in written examination and viva-voce.

The bench observed that, "We cannot ignore the fact that Dharamveer Yadav despite qualifying the selection process could not get admission as there was only one reserved seat for a disabled candidate and not two. Also, we find that many reserved seats, at least 15 have gone waste as no person with disability could get qualified, against the said seats. In such an eventuality and in peculiar facts of this c ase, the Court is of the viewthat the Respondent No.3 shall increase the intake to 8 in the “Comparative Political Theory” stream, which shall be supernumerary, which shall get lapsed after Dharamveer is awarded the degree. His admission shall also consume one seat of the unfilled seats reserved for PWD, which could not be filled for want of candidates".

The further observed, "That apart, this court is of the view that the respondents cannot dilute the mandate of the Section 32 of the Disabilities Act, and reduce the reservation to less than 5%." 

The bench clarified, "It is for the University to work out the mandate of the Act, so that every person with disability, who qualifies get admission. But in no case they can violate the mandate."

Read the judgement below:

Delhi University gets another rap from Delhi High Court - Fined for defying Section 39 of Disabilities Act 1995 [Judgement Included]

Dear colleagues,

Delhi University was caught on the wrong side of the law once again for defying the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995. The Hon'ble Delhi High Court in the instant case W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors., has directed the Delhi University to grant admission to the petitioner - a candidate with 77% disability, while declaring the admission criteria adopted by the University as "unsustainable".

In the instant case, the petitioner had sought a direction to the University to grant him admission under the PWD (Persons with disability) category in the Ph.D programme of Department of Buddhist Studies University of Delhi. The petitioner was one among the 47 students who had cleared the written examination and were called for the interview. He was the only student under the PWD category to have qualified for the same. Post interview, only twenty candidates were declared successful. However, arbitrarily no admission was granted under the PWD category. Aggrieved by the unreasonable & arbitrary denial of admission, the petitioner made representations before various authorities viz. the DU Vice-Chancellor, OSD (Admissions and Research Council) and also the Dean of the Faculty of Arts and Head of Department of Buddhist Studies, but it failed to yield any result.

The petitioner left with no option approached the High Court, alleging discrimination on the ground that other candidates who had secured similar marks in the interview were granted admission under other categories. He submitted that the University could not have frustrated the provisions of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates all Government educational institutions and other educational institutions receiving aid from the Government to reserve not less than three per cent seats for persons with disabilities. He had further contended that the minimum cut off marks could not have been fixed after the selection process had begun, as was the situation in the case at hand. The question then to be considered by the Court was then whether the cut off marks of 70, as prescribed by the Selection Committee, was justified. Accepting the contentions put forth by the petitioner, it ruled that fixing of 70 marks as the cut off for the PWD category was “without any basis/logic.”

Noting that seats in the Ph.D course were still available, and that the selection process was still going on, the Hon'ble Judge directed the University to grant admission to the petitioner, and also awarded costs to the tune of Rs. 10,000. 

To read the Court Judgement dated 14 December 2016 click below:

W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors.

Deaf witness is a competent & credible witness- High Court [Judgement Included]

Dear Colleagues,

A single bench of Hon'be Delhi High Court presided by Justice Mukta Gupta while disposing off an appeal has held that when a deaf witness is under cross-examination the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not  affect either the competence or the credibility of such witness.

In the instant appeal filed by the Accused who was convicted for the offence defined under Section 9(k), punishable under Section 10 of The Protection of Children from Sexual Offences Act, 2002, for sexually assaulting a 12 yr old deaf and dumb girl, twin arguments were raised by the counsel for appellant i.e.  firstly since the prosecutrix could not be cross-examined her testimony cannot be read in evidence  and secondly even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.

Section 119 of the Indian Evidence Act, 1872 provides: “119. Dumb witnesses.- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”

While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held: “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.

On Questioning the Testimony as no cross examination held

In reply to the first argument of questioning the testimony, Justice Mukta Gupta held as follows;

“The purpose of cross-examination is to ascertain the truth in relation to the acquisition levelled against an accused person and a discretion is vested in the Court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross-examination besides relevant facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness”.

“When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.

From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced”

On punishment under section 8 Sexual Assault or Section 9 Aggravated Sexual Assault 

The Court then examined the question whether appellant can be convicted for offence defined under Section 7 and punishable under Section 8 of the POCSO Act or defined under Section 9(k) and punishable under Section 10 of POCSO Act. The appellant was charged for offence defined under Section 7 and punishable under Section 8 of POCSO Act i.e. “sexual assault”.

Section 7 POCSO Act defines the term sexual assault as physical contact without penetration. The punishment for the same is provided in Section 8 wherein the minimum sentence is 3 years which may extend to 5 years with fine.

Section 9 of POCSO Act defines “aggravated sexual assault” which is punishable under Section 10 POCSO Act. Section 9 POCSO Act defines different types of sexual assault which would be termed as aggravated sexual assault. Sub-clause (k) of Section 9 POCSO Act provides that whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child would be punished for aggravated sexual assault as per Section 10 of POCSO Act wherein the minimum punishment is of 5 years imprisonment which may extend to 7 years and fine.”

Though charged with a major offence an accused can be convicted for a minor offence, the vice-versa is impermissible.

Court altered the Punishment

Accepting the contention of the Accused, the bench held that in the facts of the case Court is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. “ It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible which has been done by the learned Trial Court.”

Consequently, the Court altered the conviction of Accused to one for offence defined under Section 7 and punishable under Section 8 of POCSO Act.

The earlier sentence dt. 17 Dec 2013  of "Rigorous imprisonment for a period of six years and fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of three months" has not been modified as "Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- in default whereof to undergo simple imprisonment for a period of one month".

Click here for the Judgement dated 03 Jun 2016, bearing No. CRL.A. 751/2014 titled Chander Singh Vs. State

Language used by Judiciary referring to persons with disability

An important takeaway from this judgement is also the issue of improper and disability unfriendly language used by the Hon'ble Judges despite their best intentions. The terminology "deaf and dumb", "suffering from disability" etc has been repeatedly used by the prosecution, courts below and the high court in the pleadings, orders and judgement. And this is not one odd case. Its high time that the judicial officers  and prosecution officers too are trained in the use of correct language / terminology while referring to persons with disabilities. While the words, "suffering from" and "handicapped" are one extreme, the term "Divyang" suggested by Hon'ble Prime Minister of India is on the other extreme of the disability etiquette. People with disabilities are persons first and therefore a simple reference to them as "a person with disability" or "a person with hearing impairment", speech impairment, etc... in line with the UNCRPD accepted worldwide is appropriate and proper. The Hon'ble High Court must consider addressing this as a priority.  

Delhi HC directs Reserved Accessible Parking for Disabled across City of Delhi

Dear Colleagues,

The Delhi High Court on 11 Feb 2015, ordered civic agencies to reserve space for the disabled in every parking space across the city and punish errant contractors and attendants.

A bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw  while hearing the PIL W.P.(C) No.1977/2014 titled Vinod Kumar Bansal Vs. Govt. of NCT of Delhi, said the agencies have till now only “paid lip service“ to several rules enacted to ensure access to the disabled and ordered them to “reserve parking spaces most suitable for persons with disability and in sufficient number after assessing the need.“

Indicating its seriousness, the HC directed the state government and its agencies to include a penalty clause in rules so that a parking attendant or contractor who doesn't reserve space for disabled is punished and the contract is cancelled immediately. However, the court left it to the discretion of the three corporations, DDA, NDMC and the government to explore the number of reserved spaces to be kept for the disabled.

On what moved the Hon'ble Court to rule in favour of the rights of disabled, it expressed, “Our own experience in Delhi shows that at several places though ramps have been provided to enable access to wheelchairs, they are there merely for namesake as the gradient is very steep. We want to draw the attention of all concerned agencies that they must standardize the gradient...We find the ramps to be inaccessible in certain places owing to the storm water drain on the sides of the roads which acts as a barrier between the road and the ramp leading to the pavement. All this comes in the way of optimum and intended use of our roads and pavements, with the same being congested, dusty , blocked, uneven and full of potholes, impeding movement."

Directions passed by the Court 

(a) all the concerned agencies to within six months hereof, in each of the parking spaces presently available, reserve parking space/s most suitable for persons with disability and in sufficient number after assessing the need and to on the board reserving the said parking space itself also give the name and phone number of the person with whom the complaint with respect to misuse of the said parking space is to be lodged; 

(b) feasibility of making a provision for action against the contractor / attendant of manned parking lots / places viz. of cancellation of contract etc. for allowing such reserved parking spaces to be used for parking by others be considered; 

(c) feasibility of providing for identification of vehicles of persons with disability be also explored so that it can be identified whether the vehicle parked in the said reserved parking space is of a person with disability or of some other person;

(d) the process of installation of auditory signals at all traffic lights be completed within six months; 

(e) all the concerned agencies to within the said time of six months ensure that all pavements are accessible to persons with disabilities, taking into consideration the observations made hereinabove; 

(f) dedicated phone lines/ e-mail address or other user ID for cross-platform mobile messaging applications for receiving complaints/images/videos of blocking the access to the pavements by encroaching thereon be provided and the telephone number for each district be widely advertised for enabling the citizens to make complaints with respect thereto and the name of the person responsible for dealing with the said complaint and the time within which the complaint is to be dealt with shall also be provided;

(g) each of the concerned agencies to within four weeks hereof file affidavits in the Court naming the person responsible for complying with the directions issued by us and such person shall be responsible for non-compliance of the directions."

Case not completely closed

Though the matter has been disposed off so far as reliefs claimed by the petitioner, but broadening the scope of the intervention, the Hon'ble High Court fixed the next date for hearing on 19 May 2015 with directions that the Secretary, Ministry of Home Affairs, Government of India and the Chief Secretary, Govt. of NCT of Delhi should present their views in this respect before  the Hon'ble Court by filing affidavits, within a period of four weeks from today including as to the consultant / think tank / expert who / which can be entrusted with the said task.

Court expressed its dissatisfaction saying "It is sad that despite expending huge funds and the best intention of the officials and employees, the city is not able to achieve the world class status which it aspires...We are sure that a competent consultant assigned the said task would be able to devise a structure for better governance of the city".

Get a copy of Court Judgement in accessible format here

W.P.(C) No.1977/2014 Vinod Kumar Bansal Vs. Govt. of NCT of Delhi


Media Coverage

(a) Here is a related Media coverage from Times of India in image format.



(b) To read the media coverage from source in accessible format click here: Times of India 

Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014

Dear Colleagues,

Two High Courts - Delhi and Bombay decided against UPSC and DOPT and in favour of Persons with Visual Impairments in two matters filed before these courts challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 as it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995.

The Bombay High Court delivered final judgement ensuring in brief the following:

• Reservation of 39 for 1291 vacancies not 26 as in the impugned advertisement
• 13  for Visually Impaired and not 2 as in the impugned advertisement
• 20 mins time per hour not 10 min. as given in the impugned advertisement
• Talking calculators for visually impaired candidates wherever general candidates are allowed calculators.
• Large fonts to be provided on request from the next exam. Not applicable for the Prelims on 24th August 2014.

The Delhi High Court passed an interim order ensuring the following:

• No stay on the exam as DOPT indicated that they had given 6 vacancies to persons with disabilities, 2 each to the three disabilities act per the Act of 1995 in the IAS. However, DoPT explained it was not the cadre controlling authority on remaining 19 services.
• 20 Minutes time per hour as against the 10 minutes given in the impugned notification.
• Court also passed some positive remarks on the powers of Chief Commissioner Disabilities and differentiated the Guideline on scribe have statutory force which could not be overridden by the executive order of the CSE 2014 notification.
• Asked the UPSC not to disqualify candidates with visual impairments on the grounds of no vacancies.
• Since no information was available about reservation status in 19 cadres other than IAS, the court also directed UPSC  to ensure proper assessment of number of vacancies reserved for visually impaired candidates in conformity with Section 33 of the Disabilities Act and notify the same before the schedule for Mains examination is fixed.

On Powers of CCPD

Stressing on the powers of the CCPD, the Delhi High Court held that the Chief Commissioner for Persons with Disabilities (CCPD) is an authority appointed under Section 57(1) of the Disabilities Act, 1995 for the purposes of the said Act.   Section 58 of the Disabilities Act, 1995 provided for the functions of the CCPD which included taking steps to safeguard the rights and facilities made available to persons with disabilities.That being so, the guidelines dated 26.02.2013 issued by the Ministry of Social Justice and Empowerment on the recommendation of CCPD apparently for the purpose of safeguarding the rights and facilities made available to persons with disabilities, cannot be treated as mere executive instructions as sought to be contended by the respondents.  Please refer to my earlier blog entry dated 25 Sep 2012 on making these guidelines.

The court clarified that the guidelines dated 26.02.2013 on Scribe issue which are issued for effective implementation of the provisions of the Disabilities Act, 1995, have statutory force and are bound to be implemented by all the departments and authorities.

The court further held that it is no doubt true that UPSC is a Constitutional and independent body, however, the Civil Services Examination Rules - 2014 issued by the Department of Personnel & Training vide notification dated 31.05.2014 which are only in the nature of executive instructions, cannot override the statutory guidelines dated 26.02.2013 issued in terms of the provisions of the Disabilities Act, 1995 to ensure that a uniform and comprehensive procedure is prescribed for conducting examination for persons with disabilities.

To access the interim order of Delhi High Court  click below :

WP (C) 3919 of 2014 titled Sambhavna Versus Union of India and Ors. (Order in PDF Image 11 pages - may not be accessible for screen readers).

Accessible copy of the above Order dated 19 August 2014 is now available.  Please click here: Order dated 19 Aug 2014 in WP(C) 3919 of 2014

To access the Judgement of Bombay High Court click below:

WP (C) 5953 of 2014 titled Sujit Shinde and Anr Versus UPSC and Anr. (Order in accessible PDF and runs in 19 pages)

Media coverage in Indian Express on the issue:

No stay on Prelims, but HC takes up issue of seats for visually impaired

Express News Service | New Delhi | August 20, 2014 3:21 am

Granting relief to Civil Services aspirants, the Delhi High Court has refused to issue a stay on the preliminary exam for Civil Services 2014, but has directed UPSC to look into the issue of reservation of seats for visually challenged persons as per the Persons with Disabilities Act 1995.

The court has also directed that visually challenged candidates will get 20 extra minutes per hour for every hour of the examination in both the Preliminary and Main exams as per the 2013 guidelines given by the Ministry of Social Justice and Empowerment.

NGO Sambhavana had sought a stay on the UPSC preliminary examination, alleging that the allocation of seats violated the provisions of the Persons With Disabilities Act 1995, which clearly reserved 1% seats for visually challenged people, out of a total of 3% reservation for disabled candidates.

The NGO in its plea had also stated that executive rules issued in May 2014 by the Ministry of Personnel and Public Grievances had reduced the time granted to visually challenged candidates to only 20 minutes extra time in the preliminary exam, which also violated the rules made under the Disabilities Act.

The May 21 notification of the UPSC had advertised for 1,291 vacancies, but had specified 26 seats for disabled candidates, with only two seats reserved for visually challenged persons.

The court of Chief Justice G Rohini and Justice R S Endlaw in its order on Tuesday declined to stay the preliminary exam, but directed that none of the visually impaired candidates should be disqualified in preliminary examination on grounds of no vacancies.

Noting that the data on exact number of vacancies had been received only for the IAS cadre and not for the other 19 services, the court has directed the UPSC to “ensure proper assessment of number of vacancies reserved for visually impaired candidates in conformity with 1% reservation provided under Section 33 of the Disabilities Act, 1995 and notify the same”, before the schedule for Main examination is fixed.

“Out of 180 vacancies sought to be filled up in IAS on the basis of Civil Services Examination-2014, six vacancies are reserved for candidates belonging to physically handicapped category, i.e., 2 each for visually impaired, hearing impaired and locomotor disability. Thus, for IAS itself two vacancies are reserved for visually impaired. What is the vacancy position in the other 19 services that are identified suitable for physically disabled category is not known. The counter-affidavit filed on behalf of UPSC is silent on this aspect and no particulars have been furnished about the number of vacancies furnished by the other Cadre Controlling Authorities,” noted the court.

Further, the High Court has pulled up the UPSC for failing to implement the rules made under the Disabilities Act regarding extra time for visually challenged candidates.

PIL Effect - Police Installs auditory devices at 57 traffic lights in Delhi

As a result of a PIL pending in the Delhi High Court, the Delhi Traffic Police informed the Delhi high court that they have installed 57 auditory devices at traffic signals in the capital for safety of visually impaired people.

In his reply, filed before a bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw, deputy commissioner of traffic police also informed that 35 more locations have been identified for providing auditory signals.

"... Traffic police has provided 857 traffic signals and 401 traffic blinkers all over Delhi for ensuring smooth flow of traffic and safety of pedestrians and other road users. A total of 57 traffic signals have been provided with auditory devices for the safety of visually handicapped persons. In addition, 35 locations have also been identified for providing auditory signals," the reply filed through Rupinder Kumar, deputy commissioner of traffic police, said.

"Besides... on roads where there is continuous flow of traffic, 22 pelican traffic signals and 36 pedestrian traffic signals are functional which have the facility to provide adequate time in the signal cycle to pedestrians for safely crossing the roads. Additionally, 96 signals with pedestrian aspects have been installed and it is envisaged to provide pedestrian aspects on nearly all the signals," the official said.

The police's reply came after the court in March had issued notice to the Delhi government and civic agencies on a plea seeking direction to provide parking space to the physically challenged near the entrances of public buildings in line with the Master Plan Delhi 2021. The bench had also asked the traffic police, police commissioner and DDA to file responses.

The DCP also said that regular action is taken by traffic police to remove illegal parking. He added that the traffic police prosecuted 7,10,025 people in 2013 and 2,96,232 in 2014 till April 30. The official also stated that action is also being taken against second-hand car dealers, who are causing encroachment on the roads of the capital.

The official said that the department had launched a special drive on May 6 in coordination with the civic agencies for removal of encroachment "on specially identified 11 vital corridors in the NCT of Delhi, in which 567 encroachments have been removed, action has been taken against 180 vendors, 159 vehicles have been towed away, 1047 vehicles have been challaned and 145 notices for obstructive parking have been issued. The drive shall continue on a regular basis".

A PIL filed by social worker Vinod Kumar Bansal, through advocates Anupam Srivastava and Sitab Ali Chaudhary, had sought the court's direction to the Delhi government and civic agencies to install auditory signals at red lights on public roads for physically handicapped people. The plea further sought directions to make pavements wheelchair-friendly.

Source: Times of India

After Contempt petition, Deptt of Education, Delhi notifies nursery seats for children with disabilities

Please refer to my earlier posts titled  Disability angle in Nursery admission norms - HC issues notice to centre dated 26 Feb 2014 and Child with special needs distinct from disadvantage group under RTE dated 04 April 2014 on the subject. 

The Directorate of Education has finally notified the  high court order on the admission of disabled children into nursery. The circular directs 51 private unaided schools "to reserve at least two seats for the 'children with special needs' (CWSN) in their schools in nursery class for the academic year 2014-15".

To access the DoE Notification dated 19.5.2014, click here.  (The notification, the list of schools & the high order though is not accessible to the persons with visual impairment and is a very dim copy.... thanks to lack of sensitization in the DoE). This notification has come after the petitioner-representing a group of parents with disabled children-filed a contempt suit and over a month after the court first ordered DoE to keep seats vacant for this group on February 27.

The circular is not only for the 15 schools mentioned by the high court on May 15, but also says, "other schools as mentioned by the petitioner in the writ petition are also directed to reserve the same number of seats" for the group.

The petitioner had furnished the court a list of 44 schools that had, till the previous academic year, allocated points in the 100-points system to disabled children. On April 11, DoE ordered inspection of these schools to take stock of existing facilities and on May 7 told the court that 18 had facilities, 18 didn't, and another eight couldn't be inspected. The same day, the petitioner submitted another list of seven schools that had offered similar points in the previous session.

The court had asked DoE to direct 15 (the eight uninspected and the seven newly-submitted) schools to reserve seats for the group. On being summoned, the representatives of the 18 schools without facilities also appeared in court on May 20 and will have to return with their replies on May 28.

DoE on Tuesday listed 51 schools -with and without facilities, the eight uninspected and the seven introduced later. On May 7, the court, "considering the fact that finalization of the admission process is imminent in the view of the orders of the Supreme court," directed DoE to issue a circular "within 24 hours from today (May 7)." When DoE didn't, the petitioner filed a contempt suit. The principal secretary (education) had appeared in court on May 16. DoE, however, remains under contempt till next hearing.

Cardiologist Amita Garg, who initiated litigation in the matter, is disappointed that DoE has taken so long. "This is just the start for us," she says. "We'll have to now approach schools afresh."

When the points system was fixed for all this year, no separate category was created for the disabled candidates. Under Right to Education Act, the disabled kids, coming under the 'disadvantaged categories', are eligible to apply for the 25% free-ship quota.

However, there's just one draw per school for it and the number of EWS (economically weaker section) applications is so overwhelmingly large, the disabled group has found itself out of the race altogether.

Source: Times of India  

Delhi HC redefines the Scope of Powers of Chief Commissioner Disabilities

Dear Friends,

The Delhi High Court has been increasingly relying on the Court of Chief Commissioner for Persons with Disabilities (CCPD in short) for disposal of cases / writ petitions filed on the subjects involving issues related to disability rights. The High Court has been transferring petitions and asking parties to appear before the CCPD with directions to CCPD to decide the matter within a time bound manner.

We had seen earlier that the High Court sought intervention of the court of CCPD in coming to a conclusion on a matter related to nursery admission for children with disabilities under the RTE and. 

Now the Hon'ble Court has issued the mandamus thereby forwarding the PILs filed by Score Foundation & AICB  against DSSB and, Govt. of Delhi challenging  an advertisement issued by the Delhi Subordinate Services Selection Board (DSSSB) as the said advertisement did not provide reservation for the visually impaired on two posts, which are identified for this disability category. These posts are Special Educator and TGT Computer Teacher’ stenographer & telephone operator.

While passing an important order on 8th May, 2014 in the matter, the Delhi High Court ruled that the post of Computer Teacher in schools is deemed to be identified for reservation and appointment of the visually impaired. 

The  High Court issuing the mandamus that Chief Commissioner will decide the matter and issue directions in the matter pronounced an empowering interpretation of Section 58 of the Persons With Disabilities Act. The court stated that the Chief Commissioner for Persons With Disabilities is a “Statutory body” who has the powers to “Ensure that the rights made available to persons with disabilities are given effect to. Meaning thereby, those who are subject to the provisions of the Act are to be made accountable for their acts and if it is found that an organization is not implementing the provisions of the Act the said organization being compelled to do so”.

The judgment further goes on to state “this would mean that the Chief Commissioner for Persons with Disabilities has the statutory power to ensure that such posts which are identified for reservation concerning visually differently abled persons are filled up from the said/category of persons”.

While referring the two petitions in reference for final adjudication to the Chief Commissioner for Persons with Disabilities, The High Court directed that the CCPD would dispose of the matter in three days time and his orders would be complied with by all concerned without “demur”.

This important judgment will not only ensure equitable reservation for visually impaired persons in recruitments, but also provide much needed teeth to the Chief Commissioner for Persons with Disabilities to enforce his directions. Needless to say that this judgement can be cited in various states wherever the respondents organisations challenge the power of the Court of Commissioner Disabilities.

Click here  for the Common Judgement of the Hon'ble High Court in the following two cases clubbed together     (in PDF)     (in Word File) :

• WP (C) 1675 of 2014 titled Score Foundation and Anr Versus Min. of Social Justice and Empowerment & Others
• WP (C) 2848 of 2014 titled All India Confederation of Blind Versus DSSB and Others

The Chief Commissioner for persons with disabilities subsequently heard the matter and ordered the Ministry of Social Justice to reanalyse and submit a consolidated list of identified posts for persons with disabilities and ordered DSSSB to republish posts for, and reserve one percent seats for persons with visual impairment. 

Click here for the Judgement of The Chief Commissioner for Persons with Disabilities (Accessible typed PDF copy)    (Scanned copy of original Order)

Child with special needs distinct from disadvantage group under RTE

Dear Colleagues,

Please refer to my earlier blog post dated 26 Feb 2014 titled  "Disability angle in Nursery admission norms - HC issues notice to centre".

In the instant case, a parent of a child with disability challenged the inclusion of child with disability under the 25% quota of disadvantaged section which meant that there were to compete with non-disabled children from weaker sections within that 25%.  He argued that he got his ward admitted with great difficulty to a Delhi school last year. The child could not progress and was neglected on account of lack of proper attention and infrastructure.

He further submitted that the number of schools equipped with infrastructure and personnel to handle these students were very few. The nature of the guidelines is such that these children have very little chances of getting admission in these institutions.

The Division Bench of Justice S. Ravindra Bhat and Justice R.V. Easwar of Delhi High Court 

directed the Union and Delhi Governments to treat “children with special needs” (CWSN) separate from those belonging to the economically weaker sections (EWS) and the disadvantaged group for admissions in pre-primary and other classes while hearing the above public interest litigation challenging an amendment to the Right to Education Act and a paragraph of the Delhi Government guidelines for nursery admissions that clubbed these students with those belonging to economically sections and the disadvantaged group.

Allowing the plea, the Bench said: “This Court is therefore of the opinion that the petitioner’s argument is merited and has to prevail. First, the imperative of Section 26 [of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995] is that the Government has to ensure that all CWSN are given access to education till age 18.”

The Court held that the right to free, compulsory education to CWSN guaranteed by Section 26 of the PWD Act read with Section 3 (3) of the RTE Act is in no manner affected or diluted by the definition in Section 2 (d) of the RTE Act. This would mean that the State necessarily has to ensure the admission of all CWSN and can not limit them in 25% quota.

The court said that a close analysis of the provisions of the PWD  Act with respect to educational rights of CWSN reveals that the Parliament always intended that the children covered by  that enactment were entitled to free and compulsory education till they attain the age of 18 years, by virtue of Section 26. The wide nature of this right is underlined by the fact that it is not subject to a minimum or maximum quota of any kind whatsoever. Whilst the addressee of this right is the State, unlike the RTE Act, which vests rights in individuals, the content of the obligation upon the State cannot, in any way, be diluted. Any such reading would render Section 26 hollow, as mere rhetoric. This is neither the meaning that appears from the text of Section 26, which is clear and without qualification in its mandate to “ensure that every child with a disability has access to free education”, nor its context to ensure the inclusion of CWSN into society through education. In addition, Section 39 – which is located in Chapter VI – and mandates a minimum 3% quota for “persons with disabilities” in government and government-aided educational institutions cannot in any manner be read as limiting the right under Section 26. To hold that Section 39 exhausts the legal obligation under Section 26 would be to conflate two independent sections, and render the latter hollow. Such an interpretation cannot be countenanced. Rather, Section 39 is only one of the measures that contributes to the broader directive of Section 26, leaving the State to work out other mechanisms to achieve the stated and mandatory end. 

Court further clarified that Section 39, in essence, covers higher education, in respect of persons with disabilities who cannot claim right to free and compulsory education. In those institutions that cater to higher and professional education, the quota of 3% is mandated.

The court said that bracketing CWSN with other ‘disadvantaged groups’ – under the terms of the 2013 order – substantially diminishes their relative chances of admission. This relative disadvantage compared to other non-disabled persons, which is the very issue sought to be remedied, is in fact perpetuated by this classification. Thus, granting parity in respect of educational benefits in this case translates to a distinct classification.

The court highlighted that in order for the education of CWSN to be effective, rather than merely counting attendance, the infrastructure and facilities in these schools must match-up to their intake. Clearly, that is not the case, even by the figures provided by the GNCT itself. The quality of  education provided to these children comes into doubt, and absent any clear reporting mechanism, the issue is plunged into further darkness. This is keeping aside the fact that even considering the number of students enrolled (on paper), a majority are still excluded and are not enrolled even on paper.

Referring to the census 2011 figures and the number of CWSN admitted in the govt. aided or run special schools, the court said, "the magnitude of the challenge becomes clear from these figures. Not only are our public institutions unable to cater to CWSN because of lack of adequate infrastructure, but moreover, there remains incoherence in the reporting itself. Despite the clear mandate of Section 26, not only can it not be said that all CWSN have access to education, but rather, a majority of CWSN are not in school, and even this fact cannot be attributed to exact figures, given the absence of a comprehensive and accurate reporting mechanism. The entire challenge is thus relegated to the background, without any attempt to measure the statistics comprehensively, in order to pave the path forward.

The Court directed the Delhi Government to “create a list of all public and private educational institutions catering to CWSN. This list shall be created zone wise. It shall include full details as to the nature of disability the institutions are able to cater to, the facilities available, whether residential or day-boarding, and the contact details for the concerned authority in that institution in case of any clarifications”.

The Court also directed it to create a nodal agency under the authority of the Department of Education (DoE) for the processing of all applications pertaining to admission of CWSN.

“This nodal agency shall structure a single form to be utilised by parents and guardians of CWSN for admissions into public and private institutions, including all relevant details required for the purposes of admission,” the Bench said.

The court purposefully  did not dispose off the case. The case has been kept pending for Action taken report from the Delhi Govt. within four weeks. The matter will be next listed on 07th May 2014. 

For detailed judgement please click here:  Judgement dated 03 April 2014 in W.P.(C) 1225/2014 Pramod Arora versus Hon'ble Lt. Governor of Delhi & Ors.

Related news coverage in media: 

Times of India -  Ensure all kids with special needs admitted to schools: HC

IANS  |  New Delhi  April 3, 2014 Last Updated at 23:06 IST

The Delhi High Court Thursday directed the city government to ensure that all children with special needs in the capital are admitted to schools equipped with infrastructure and personnel to handle them.

A division bench of Justice S. Ravindra Bhat and Justice R.V. Easwar said the authorities have overlooked the needs of such children, and directed the creation of a nodal agency to take care of the modalities for selecting schools equipped to handle disabilities - whether blindness, speech impairment, autism etc - as per the child's special requirement.

The current nursery admission guidelines, including the neighbourhood criteria and the point-based admission system, will not be considered while admitting children with special needs, the court said.

The court said the Lt. Governor's admission guidelines was illegal to the extent that it clubbed children with special needs with those from economically weaker sections (EWS)and other disadvantaged groups.

The court was hearing a plea which challenged the guidelines issued Dec 18, 2013 whereby disabled children were clubbed with EWS children in a common 25 percent quota for admission in nursery classes.

Earlier, up to three percent seats for children with special needs were reserved.

Supreme Court to hear Curative Petition on Decriminalisation of Homosexuality

Dear Colleagues,

Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual acts.

The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

The Supreme Court on 03rd April 14,  agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalizing homosexuality. 

A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said that it will go through the documents and consider their plea. 

Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case. 

The petitioners, including NGO Naz Foundation which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, contended that there was an error in the judgment delivered on December 11 last year as it was based on old law. 

Senior Advocate Ashok Desai said that the judgment in the instant case was reserved on March 27, 2012 but the verdict was delivered after around 21 months by the SC and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgment.  Senior advocates like Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers supported Ashok Desai and pleaded for an open court hearing.   They submitted that the case should have been heard by the Constitution bench instead of two-judge bench which heard and delivered the verdict on the controversial issue. 

The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists including noted filmmaker Shyam Benegal against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment. 

Related News in Times of India -  Gay sex: SC agrees to consider curative petition in open court