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

Court: Karnataka High Court, Bangaluru

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

Case No.:  WP (C) 14180 of 2023

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

Date of Order: 04.08.2023

Brief of the case 

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

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

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

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

The court passed the following order:

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

Issue notice returnable within four weeks.

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

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

Writ prayers

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

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

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

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

Interim prayer

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

Delhi High Court Holds Dilution of 5% Disability Reservation in JNU Violates RPwD Act

Court: Delhi High Court
Bench: Justice D.N. Patel and Justice Prateek Jalan
Case No.: W.P.(C) 3471/2020
Case Title: Javed Abidi Foundation v. Union of India & Ors.
Date of Decision: 06 November 2020

Cases Referred:   

• W.P.(C) 3817/2018  titled National Federation of Blind v. Union of India & Ors. [2018 SCC Online Del 12367]
• Justice Sunanda Bhandare Foundation v. Union of India & Anr.; [(2017) 14 SCC 1]

Background

The Javed Abidi Foundation approached the Delhi High Court through a Public Interest Litigation raising concerns regarding non-implementation of the mandatory 5% reservation for persons with benchmark disabilities in higher educational institutions under the Rights of Persons with Disabilities Act, 2016.

The petition specifically challenged the admission policy and electronic prospectus issued by Jawaharlal Nehru University for the Academic Year 2020–21. According to the petitioner, although the University formally mentioned reservation for persons with disabilities in its admission policy, the actual method adopted for calculating seats substantially reduced the reservation guaranteed under Section 32 of the RPwD Act.

It was argued that in several courses and academic programmes, the effective reservation available to persons with benchmark disabilities fell below the statutory minimum of 5%, and in some cases was reduced to nearly 2.5%.

The petitioner contended that the University was calculating reservation on a fragmented basis by dividing seats school-wise and centre-wise instead of calculating reservation against the total seats available in the institution. This, according to the petitioner, diluted the purpose of the law and resulted in underrepresentation of students with disabilities.

Reliance was placed on earlier judgments, including National Federation of the Blind v. Union of India and Justice Sunanda Bhandare Foundation v. Union of India, where courts had stressed the importance of effective implementation of reservation policies for persons with disabilities.

In response, JNU argued that its admission policy expressly incorporated 5% reservation for persons with benchmark disabilities in compliance with the RPwD Act. The University further submitted that where courses had fewer than nine seats, clubbing of seats at the school or centre level was undertaken to ensure reservation benefits were extended to candidates with disabilities.

Key Observations of the Court

The Delhi High Court examined the reservation framework under Section 32 of the RPwD Act and reiterated that reservation for persons with benchmark disabilities is a mandatory statutory obligation and not a matter of discretion.

The Court observed that the RPwD Act is a rights-based legislation enacted to secure substantive equality and meaningful inclusion for persons with disabilities in education and public life.

Importantly, the Bench held that merely mentioning reservation provisions in institutional policies is not sufficient if the actual implementation mechanism defeats the statutory mandate. The Court stressed that compliance must be real and effective, and not merely symbolic.

The Court noted that institutional methodologies which reduce the effective percentage of reservation available to persons with disabilities would be contrary to the object and purpose of Section 32 of the RPwD Act.

Reaffirming earlier disability rights jurisprudence, the Bench observed that educational institutions cannot adopt administrative or structural mechanisms that dilute or defeat mandatory reservation requirements.

The Court further recognised that reservation for persons with disabilities is closely linked to the constitutional guarantees of equality, dignity and participation under Articles 14, 19 and 21 of the Constitution of India.

According to the Court, educational access for persons with disabilities cannot be undermined through fragmented seat calculations or compartmentalised admission practices that effectively reduce opportunities for disabled students.

The Bench emphasised that the RPwD Act must be interpreted in a manner that advances inclusion rather than restricts it.

Directions Issued

The Delhi High Court directed the authorities to ensure strict implementation of the reservation mandate under Section 32 of the RPwD Act.

The Court clarified that:

• Reservation for persons with benchmark disabilities must be implemented in its true letter and spirit.
• Educational institutions cannot adopt admission methodologies that reduce the minimum 5% reservation guaranteed under the RPwD Act.
• Regulatory authorities are obligated to ensure uniform compliance with disability reservation requirements across higher educational institutions.
• The reservation framework under the RPwD Act must be interpreted in a manner that advances substantive inclusion and equal participation for persons with disabilities.

The judgment also highlighted the responsibility of governmental authorities to monitor compliance and take corrective action wherever institutions fail to implement disability reservation properly.

Commentary

The judgment in Javed Abidi Foundation v. Union of India & Ors. is an important reaffirmation of the enforceability of disability reservation rights in higher education.

A key contribution of the ruling is the Court’s clear rejection of formalistic compliance. The judgment recognises that institutions cannot satisfy their legal obligations merely by inserting reservation clauses in prospectuses or policy documents while simultaneously adopting admission processes that dilute the actual benefit available to persons with disabilities.

The ruling is particularly significant because educational institutions often rely upon fragmented seat calculations, departmental segregation or administrative compartmentalisation to reduce the effective operation of disability reservation policies. By focusing on the substantive purpose behind Section 32 of the RPwD Act, the Court prevented practices that could convert statutory reservation into an illusory entitlement.

The decision also acknowledges the broader constitutional importance of educational inclusion. Access to higher education remains central to economic mobility, professional participation and equal citizenship for persons with disabilities. Exclusion from educational institutions has historically contributed to the marginalisation of disabled persons from mainstream social and professional spaces.

Equally important is the judgment’s rights-based approach to disability. The Court treated reservation not as a welfare measure or concession, but as an enforceable legal right grounded in equality, dignity and substantive inclusion.

At the same time, the case highlights continuing implementation failures despite the enactment of the RPwD Act and repeated judicial interventions. The litigation demonstrates how persons with disabilities and advocacy organisations are often compelled to approach constitutional courts merely to secure compliance with rights already guaranteed under law.

Nevertheless, the ruling significantly strengthens the legal framework for disability-inclusive higher education and reinforces that institutions cannot dilute statutory reservation obligations through administrative practices or technical interpretations.

Read the judgement below: