Showing posts with label RPwD Act 2016. Show all posts
Showing posts with label RPwD Act 2016. Show all posts

Wednesday, January 24, 2024

Madras HC- State Govt. ought to have ensured Kilambakkam Bus Terminus disabled friendly as per the accessibilty mandate of RPWD Act

Court: Madrash High Court, Principal Benchat Chennai

Bench:  Chief Justice Mr. Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy

Case No. WP No. 29942 of 2023

Case Title: Ms. Vaishnavi Jayakumar Vs. Chennai Metropolitan Development Authority & Others

Date of Judgement: 24 Jan 2024 (PDF 164 KB)

Subject: Accessibility of Public Transportation system, Access Audit of Public Buildings and Built Environment, Grant of Completition Certificate to Buildings,


The petition was filed seeking directions against the first respondent to take necessary measures so as to ensure that the Kilambakkam Bus Terminus in Tamilnadu is fully compliant with design and standards prescribed in the Harmonized Guidelines and Standards for Universal Accessibility in India, 2021 as as to be accessible to persons with disabilities.

Durign the hearing on 15 Dec 2024, the government of Tamil Nadu had informed that steps have been taken to make the terminus disabled-friendly. Observing that it is now 'mandatory in every building to have disabled friendly access facilities', the Chief Justice had stressed that "this has to be done before starting the construction".

The petitioner Ms. Vaishnavi Jayakumar had sought the court to restrain the Chennai Metropolitan Development Authority (CMDA) from issuing a completion certificate to the bus terminus without being certified as compliant with the Rights of Persons with Disabilities Act, 2016 and the 2017 Rules by an empanelled access audit agency.

She also wanted the court to issue directions to conduct a detailed accessibility audit of the terminus through an empanelled access audit agency as it is not in compliance with the Harmonised Guidelines and Standards for Universal Accessibility in India, 2021.

Jayakumar had argued that the terminus was found slippery, there was reflective flooring without adequate contrast, absence of even a single toilet enabling bilateral wheelchair transfer onto the commode, the entire first floor does not have tactile flooring or warning and no dropped kerb (lowered areas of pavement) for wheelchair users to get onto the bus bay tarmac from the elevated seating area.

Ensuing Access Audit report pointed outu some 17 deficiencies and the first respondent subsequently issued work orders with regard to seven deficiencies and with regard to the remaining ten deficiencies, it assured that the work orders would be issued within two months from today. 

The petitioner submitted that in additon there are four more bus stands coming up one each at Koothambakkam, Venpakkam, Varadarajapuram and Mamallapuram. "The aforesaid bus stands will have to be constructed in compliance with the Harmonized Guidelines and Standards for Universal Accessibility in India, 2021 and the first respondent shall take necessary steps while issuing the tender notice." the bench directed.

Court also expressed, "We would appreciate if the Access Auditors would make periodical inspection during the construction activity of the bus stands and make necessary suggestions as and when required" and accordingly dispossed off the petition with directions to submit Compliance Report on 25.3.2024.

Read the disposing judgement dated 24 Jan 2024 in the instant case below:

Monday, July 17, 2023

Supreme Court directs appointment of independent Disability Commissioners in all states by 31 Aug 2023

Court: Supreme Court of India

Bench: Chief Justice of India DY Chandrachud ; Mr. Justice PS Narasimha and Mr. Justice Manoj Misra 

Case Title: Seema Girija Lal And Anr. v. Union of India And Ors. 

Case No.: Writ Petition (Civil) Diary No(s). 29329/2021 

Date of Order:  17 Jul 2023 

Previous Order: 13 Jan 2023

Next Date of Hearing: 18 Sep 2023


Please refer to the brief write up on the previous order passed by the court dated 13 Jan 2023 in this PIL seeking the formation of district-level committees to enforce the Rights of Persons with Disabilities Act, 2016, when the Hon'ble supreme court was pleased to issue a notice, without even admitting it or the registry allocating it a Writ petition number.  The petition stated that India’s basic infrastructure to meet the needs of its nearly 3 crore persons with disabilities is 'visibly absent', and that the top court should take judicial notice of this concern. 

The bench had then specifically passed the following order:

"We direct that notice shall be issued to Union of India and Ministry of Social Justice and Empowerment. The Ministry shall file counter affidavit within a period of a month. The affidavit shall indicate state wise the implementation. Union of India shall convene a meeting with all concerned states and state advisory boards with a view to eliciting the present status of compliance. We request Ms. Divan, ASG to assist. At this stage we're not issuing notice to state govts. Based on affidavits, we'll decide."

During the hearing on 17 July 2023, the Chief Justice expressed the concern that the current state of implementation of the RPWD Act 2016 revealed a distressing situation throughout the country. 

Pertinently, the bench noted that disability commissioners were entrusted with several statutory duties under Section 75 and Section 80G of Act. However, a report before the Court indicated that several States and Union Territories had failed to appoint such independent commissioners as required under Section 79 of the Act. And thus it direted the appointment of such commissioners by August 31, 2023.

The Court further ordered the concerned Union Ministry to coordinated with the relevant ministry of all State governments to file an updated affidavit by September 17. The States were asked to upload relevant details on the dashboard of the Central government.

The matter has now been listed for further hearing on September 18, 2023.

Read the Order dated 17 July 2023 below:

Monday, December 12, 2022

Delhi HC: Children with Disabilities entitled to basic facilities free of costs that includes, school uniform, books, assistive devices, transportation etc. [Judgement Included]

Court: High Court of Delhi at New Delhi

Bench: Justice Pratibha M Singh

Case No: W.P.(C) 14032/2022

Case Title: Manish Lenka Vs. Union of India & Ors.

Date of  Order: 12 December 2022

Next Date of Hearing: 22 March 2023

Subject: Free Educational Facilties for children with Disabilities

Matter in brief:

Petitioner, a student of Class 6 at a Kendriya Vidyalaya school in Noida, with a visual impairment of over 75 per cent, had moved the high court seeking a grant of books, learning material, and assistive devices along with other facilities provided under the RPWD Act. The boy’s counsel argued the child’s father is a daily wager who is unable to afford his son’s educational requirements.

The child claimed the facilities were not being provided by the school pursuant to which he approached the Court of Chief Commissioner under the RPWD Act. The Chief Commissioner on October 13, 2020, had directed that “books, learning materials, uniforms etc, as well as the facility of scribe/lab assistant” be granted to the student. The student claimed that despite the said order the facilities were not granted to him.

Submitting its status report before the high court, the school argued that all the items as requested had been provided including a scribe during offline exams for the 2021-22 session and the same shall be provided in future as well. However, the child’s counsel argued his client had not been given a waiver of the uniform fee, computer fee, and transportation cost to date.

Perusing the provisions of the Rights of Persons with Disabilities Act (RPWD), 2016, the bench observed, “A perusal of the said provisions show that facilities such as uniform, computer fee and transportation cost are all covered under the statute… These constitute basic facilities for a child… Considering the recognition given to the rights of persons with disabilities, there can be no doubt that these facilities ought to be provided especially at Kendriya Vidyalaya Schools which are government schools present all over the country, in order to ensure that children with disabilities are not deprived of proper education”.

The bench directed the school to provide uniforms free of cost to the student within a period of two weeks and also waived the computer fee. With respect to transportation costs, since the school did not provide it, the child’s counsel was asked on the next date of the hearing to make a submission on the transportation cost incurred by the child for travelling between his home to the school and back.

The bench also directed the Centre to file a status report regarding the measures that are to be taken in regard to the transportation cost and other facilities as directed under the RPWD Act. The Centre was also directed to file a status report on the student’s requirement for an assistive device. The bench added if the child is not provided with the requisite facilities as directed by the court, he would be free to approach the Court by way of an application. 

The matter has been next listedon 22 March 2023.

Read the Judgement here:

Thursday, August 18, 2022

Calcutta HC: RPwD Act shifts focus from protection to empowerment [Judgement Included]

High Court: Calcutta HC

Bench/ Judge:  Justice Moushumi Bhattacharya

Case Title: WPA 6043 of 2022, Dr. Arun Sarkar Vs. The State of West Bengal & Ors. 

Date of Judgement/Order: 08 August 2022

The Calcutta High Court  quashed a resolution passed by the Governing Body of a College refusing to consider a person with physical impairment for appointment in the disability category, finding it to be in violation of the Right of Persons with Disabilities Act, 2016.

The court observed that the 2016 Act which replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to empower persons with disability rather than protect them. The Single Judge also made significant observations on the nature of the 1995 Act and the 2016 Act, adding that in the 2016 Act, the canvas was more about effective integration of persons with disability and less about recognition of a physical condition as a limiting factor.

"The 2016 Act is a declaration of rights and opportunities to persons with disability. While the idea of freedom from the physical limitations germinated in the 1995 Act, in 2016 the focus shifts from protection of persons with disability to empowerment; recognition of limitations to removing barriers; the right to participation to affirmative action. In essence, the statute facilitates the movement of the community from the margins to the mainstream of opportunities.", the court observed.

The petitioner was a  person with benchmark disability with a 80% disability as a result of the amputation of his upper limbs following an accident. He served as the Assistant Professor at Kandi Raj College for seven years and thereafter sought an appointment in a college nearer to his residence finding it difficult to travel 480 km on a daily basis. He was soon recommended by the West Bengal College Service Commission for an appointment at the Acharya Girish Chandra Bose College in the Disability category. However, the Governing Body of the College passed a resolution asking the Commission to reconsider its recommendation of the petitioner as a candidate.

Aggrieved by this, the petitioner filed a petition before the High Court which came to be dismissed by a Single Judge in 2020 for want of requisite pleading. However, liberty was granted to the petitioner to challenge the decision of the Governing Body. Accordingly, he moved another petition.

Counsel for the petitioner submitted that the impugned decision of the Governing Body culminated in the College refusing to issue the letter of appointment to the petitioner and that it was thereby arbitrary, discriminatory and in violation of the 2016 Act.

Counsel  for the college submitted that a mere recommendation for appointment to a post does not confer any right on the petitioner to be appointed to such post. It was also argued that since the advertisement for the post was published by the College Service Commission in 2015, the facts would be governed by the 1995 Act and not the 2016 Act.

While deciding the question of whether the petitioner's case would be governed under the 1995 Act or the 2016 Act, Justice Bhattacharya recalled that Section 102(2) of the 2016 Act provides for a saving clause with reference to anything done or any action taken under the 1995 Act as deemed to have been done or taken under the corresponding provisions of the 2016 Act. "Hence, even if the advertisement was published by the Commission on 30th June, 2015 before the 2016 Act came into force, the action of the Commission and the College taken on the basis of such advertisement would continue under the provisions of the 2016 Act." observed the Judge.

Moreover, the Single Judge found that the objects of the 2016 Act make it evident that it is a piece of beneficial legislation for preserving the rights of persons with disabilities and empowering them with equal opportunities. "If this be the case, attempting to slot the petitioner into one legislation to the exclusion of the other would be an unnaturally restrictive vision of the bridge between the two Acts and their commitment to inclusivity," the Court observed.

Analysing the definition of 'disability' under the 1995 Act and the 2016 Act respectively, the judge observed, "While the 1995 Act associated disability as a condition from birth,  the 2016 Act had a more inclusive definition for the same, which included evolving forms of disability within its fold."

Either way, it was found that in a legislation intended to benefit persons with disability, a definition of disability cannot be frozen with the repealing of the 1995 Act particularly when the whole object of the 2016 Act was to include broad-spectrum disabilities which were not within the recognition of the framers of the earlier statute and to empower persons with disabilities to effectively integrate with society.

In any event, the cause-effect factor cannot be discounted to limit spectrum disabilities just because the petitioner did not have 80% disability from birth, the Court held. Therefore, it was found that the petitioner was a person with disability as defined under the Acts.

The Court then observed that the objective of the 2016 Act was full participation of persons with disabilities and empowering them to realize their full potential. The Judge also found it essential to analyse the definition of 'barrier' as given under Section 2(c) - any factor including communicational, cultural, economic and environmental impeding the full participation of persons with disability in society.

Thus, it was clear that the goal of the 2016 Act was to remove barriers in all forms which would frustrate the object of the Act. Viewed from this angle, it was clear that the decision of the Governing Body, in essence, revealed a set of prejudices which squarely fit into the definition of a  "barrier". The Court added that this was also a reflection of a mindset barrier and that it falls foul of the statutory mandate on all counts.

"The impugned decision is opaque, reflects an intransigent mindset and a systemic obstacle to the personal and intellectual growth of persons with disability. The decision is regressive and chains the freedoms and opportunities of the community." observed the judge.

The court held that the Governing Body had a duty to consider the import of the provisions of the 1995 Act and the 2016 Act which imposed a duty on the Body to act in terms of the mandate of the law which it failed to do.

"There cannot be any denial of the fact that the Governing Body of the College had a duty to act responsibly with sensitivity, having regard to the statutory position governing persons with disabilities. It is all the more surprising that the Governing Body directed the Chairman and Secretary of the College Service Commission to replace the recommendation of the petitioner "by another one with same category" (the words are further indicative of the mindset of the Governing Body)." expressed the judge.

The impugned decision also gave rise to serious civil consequences on the petitioner's rights in specific and persons with disabilities in general, hence the impugned decisions are denounce-worthy as per the 1995 and 2016 Acts and being in direct contradiction with the objectives sought to be achieved by the statutes.

While the Court may not appropriate unto itself the power of recommending the petitioner for appointment, the Court deems it fit to direct the Governing Body to arrive  at a fresh consideration of the facts before it and revisit the issue with due regard to the statutory mandate. The resolution taken by the Governing Body was quashed and it was directed to come up with a fresh decision within 8 weeks. The appeal was thus partially allowed.

Tuesday, July 26, 2022

Supreme Court of India- Degree of disability no ground to deny reasonable accommodation [Judgement Included]

Court: Supreme Court of India

Bench: Justice Dr Dhananjaya Y Chandrachud; Justice Indira Banerjee and Justice Sanjiv Khanna

Case Number: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 

Case Title: Vikash Kumar v. Union Public Service Commission & Others.

Date of Judgement: 11 February 2021  

Cited as:  2021 SCC OnLine SC 84

Cases refered/quoted

Case Brief:

On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). 

The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).

Case details:

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. 

The Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India… A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”

The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … the accommodation which the law mandates is ‘reasonable’ because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence…”

In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.

The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.

The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 

In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.

The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution

The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 

The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.

The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.

Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.

Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.

Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others. 

Dowload the judgement  [418 KB]

Thursday, July 22, 2021

Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly

Court: Madrash High Court, India

Bench: Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy 

Case No(s): W.P. No. 5957 of 2021(Lead Case) along with WP 38224 of 2005 and WP 923 of 2007

Case Title:     Vaishnavi Jayakumar Vs. State of Tamil Nadu & two Others (Lead Case)

Date of Hearing: 22 July 2021

Case Brief 

In a push for the rights and independence of people with disabilities in their commute, the Madras high court on Thursday restrained Tamil Nadu from purchasing any new bus to its fleet in the public transport system unless such buses were disabled-friendly as prescribed by law.

The first bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy passed the interim injunction on a batch of pleas that have been pending before the court for years including from as far back as 2005, seeking universal use of disabled-friendly buses in public tranport fleet. 

One of the writ petitions in the batch i.e. W.P. No. 5957 of 2021 had been filed by cross disability rights advocate, Vaishnavi Jayakumar. She had challenged a Government Order (GO) issued on February 24 this year, for introduction of only 10% of low floor buses and 25% of buses fitted with lift mechanism or any other suitable mode, to provide easy access to wheelchair bound passengers, out of the total buses to be procured for Metropolitan Transport Corporation (Chennai) Limited.

The petitioner had contended that the GO violates Section 41 of the Rights of Persons with Disabilities Act of 2016. The legislation requires the State government to take suitable measures to provide facilities for persons with disabilities at bus stops, railway stations and airports and also access to all modes of transport by even retrofitting old modes of transport wherever it was technically feasible.

She said the GO for introducing only 10% of low floor buses and those with lift mechanism was also in violation of Articles 14 (equality before law) and 21 (right to life) of the Constitution. “The GO is an arbitrary exercise of power by the State. It is not only in complete violation of the rights of persons with disabilities but also contumacious, since it violates several judicial orders,” she said.

The petitioner had sought to restrain the state from acquiring any further bus unless it conforms to the requirements of the Rights of Persons with Disabilities Act, 2016 and the Rights of Persons with Disabilities Rules, 2017 and under the latter, Rule 15 in particular. Rule 15 mandates that every establishment complies with the specified standard as indicated in a notification issued by the Government of India on September 20, 2016.

Advocate General R Shunmugasundaram said the government was purchasing disabled-friendly buses in phases because the roads were in bad shape and they would damage the low-floored buses.

Advocate Rita Chandrasekar, representing Metropolitan Transport Corporation, said the low floor buses cost ₹58 lakh each as against ₹26 lakh for regular buses and hence there was a delay in purchasing such buses.

The state's submission that low-floor buses were expensive and would be damaged by bad roads was rejected. The state has been submitting excuses of certain practical difficulties, particularly in finding resources not only to acquire the more expensive buses but also to create the road infrastructure required for such sophisticated buses. It sought more time to indicate a roadmap.

Rejecting their submissions, the bench in its order said, "In view of the mandate of the statute, read with the Rules framed thereunder and the notification published in accordance therewith, there may be no room to manoeuvre and little scope for the court to delay the implementation of the policy as reflected in the statute and the laws made thereunder.

The court further said in its order, "the State seeks time to indicate a road-map. However, it is necessary that the State be restrained from acquiring any further bus for the public transport system which does not conform to the specifications indicated in the notification of September 20, 2016 referred to above. In other words, the State will not acquire any new bus for use thereof as part of the public transport system unless such bus meets the standards indicated in the notification of September 20, 2016".

Read the interim order dated 22 Jul 2021, embedded below:

Tuesday, April 27, 2021

Supreme Court: Testimony of a witness with disability not inferior; intersectionality need to be taken in to account while determining the case.

Court : Supreme Court of India

Bench:  Hon'ble Chief Justice Dr Dhananjaya Y Chandrachud & Hon'ble Justice M R Shah

Case No: Criminal Appeal No 452 of 2021

Case Title: Patan Jamal Vali v. State of Andhra Pradesh

Citation: 2021 INSC 272

Date of Judgement: April 27, 2021


Testimony of a witness with disability cannot be considered inferior to that of their able-bodied counterparts only on account of the disability. Crimes against Women, Caste-based Violence, lntersectionality, Gender Evidence, Testimony of Person with Disability.

The case was about the rape of a girl with visual impairment belonging to a Scheduled Caste. The SC affirmed the conviction of the appellant for rape of the girl with visual impairment. The court discussed that it is imperative to take into account the inter sectionality while determining the case. The court emphasised that threats against women with disabilities in India are not uncommon and can lead to feelings of powerlessness. However, the court clarified that by this they did not mean to subscribe to the stereotype that persons with disabilities are weak and helpless, rather aim to highlight the increased vulnerability in such cases, and cited reports such as the 2018 report by Human Rights Watch. The court also gave certain guidelines including the need for Awareness-raising campaigns, in accessible formats, to inform women. 

Thursday, August 27, 2020

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

Court: Kerala High Court,  Ernakulam Bench

Bench:  Hon'ble Smt. JUSTICE P.V. ASHA

Case No. (Lead Case) : WP(C).No.4753 OF 2020(T) Tagged Petitions: WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).

Case Title (lead Case) : Renjith J.V. Vs. State of Kerala and Others. 

Date of Judgement: 26 Aug 2020


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, March 19, 2020

J&K HC: Horizontal Reservation implementation requires a separate merit list of the such candidates.

Court:  Jammu and Kashmir High Court

Bench: Hon'ble Mr. Justice Sanjeev Kumar

Case No.SWP No. 1746/2018

Case Title: Anil Sharma and others v. Chief General Manager, Human Resources Management, Reserve Bank of India and another

Date of Judgement19.03.2020

Brief of the Case:

Reserve Bank of India claimed that it had granted 8 Grace Marks to the petitioners seeking the benefit of horizontal reservation being from category of ex-servicemen and persons with disabilities. The court was of the view that the way the respondents have given effect to horizontal reservation provided to the category of ex-servicemen is not in consonance with law and amounts to denial of benefit of reservation provided for such category. The respondents by devising this novel way of operating horizontal reservation defeated the concept of horizontal reservation provided for certain categories like “person with disability” and “ex- servicemen”.  

The bench observed that granting grace marks without actual reservation to the candidates belonging to Handicapped or ex-servicemen category and then comparing there result with open category is not just and fair and not as per horizontal reservation provided by the law in consonance with the Constitutional Art 16(1). 

In   The court observed, "It goes without saying that in the instant selection, there were no minimum standards fixed by the respondents to qualify for selection and therefore, addition of 08 grace marks to the merit of the petitioners was totally inconsequential. It was totally absurd and illogical to compare the merit of the candidates belonging to ex-servicemen category with the merit of last selected in open merit. The whole procedure adopted by the respondents is de-hors the rules and settled position of law as enumerated in the case of Indira Sawhney and others Vs. Union of India, reported in 1992 Supp (3) SCC 210. The petitioners were entitled to the benefit of horizontal reservation and with a view to give effect to such reservation, it was incumbent upon the respondents to prepare a separate merit list of the candidates belong to the categories of EX-I and EX-2 and pick up one candidate with highest merit in the category of EX-I and four candidates in the order of merit from the category EX-2 and place them in the select list of their respective categories." 

Allowing the petition, the court directed the respondents to select and appoint the petitioners as Office Attendants in the Jammu Office of Reserve Bank of India by giving them the benefit of horizontal reservation meant for ex-servicemen. 

Read the order below:

Thursday, April 27, 2017

Supreme Court of India asks compliance report of new RPwDAct 2016 in 12 weeks | IA No. 10 of 2015 in Justice Sunanda Bhandare Foundation case [Judgement Included]

Court:         Supreme Court of India

Bench:         Justice Dipak Misra,  Justice A.M. Khanwilkar, Justice Mohan M. Shantanagoudar

Case No. :     I.A. NO.10 OF 2015 in  WP (Civil) No. 116 OF 1998, 

Case Title :   Justice Sunanda Bhandare Foundation  Vs. U.O.I. & Anr 

Date of Judgement:  25 April, 2017

Author: Justice Dipak Misra


Dear Colleagues,

Hon'ble Supreme Court of India has, in a major move to ensure speedy justice to persons with disabilities, has passed directions to implement the Rights of Persons with Disabilities Act 2016 enforced by the Govt. of  India on 19 April 2017. In an interlocutory application filed by the petitioner in Justice Sunanda Bhandare Foundation vs. Union of India and Another, reported as (2014) 14 SCC 383, and on the application filed by intervener "Sambhavana Organisation",  the bench of  Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar passed the directions to all the States and Union Territories to file compliance report within 12 weeks on the Act of 2016.

The Intervener, Sambhavana Organisation - a self help group of persons with disabilities had also filed an application citing examples of over seven Universities that were discriminating against persons with Blindness and Vision Impairments while filing up various teaching and non-teaching posts. The intervener also cited instances that UGC that funds these universities has not taken any action on implementation of the provisions of the Disabilities Act particularly the reservation in employment and successive employment notification systemically failed to give the rightful representation to the stakeholders with visual disabilities.

The bench observed, "The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant."

The bench referred to certain provisions to highlight the salient features of the Act of 2016 and stressed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. 

The Court directed, "When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. The Bench directed the SC registry to send its order to chief secretaries of all states and directed them to take immediate steps to comply with its direction by 16 Aug 2017.

The Court directed that compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner (Justice Sunanda Bhandare Foundation), learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor (Sambhavana Organisation) so that they can assist the Court.

Read the Order Dated 25 April 2017 in matter titled Justice Sunanda Bhandare Foundation vs. Union of India and Another  embedded below:

Thursday, April 20, 2017

What are the 21 Disabilities Covered in the Rights of Persons With Disabilities Act 2016

The number of recognized disability conditions was increased from 7 to 21 in the Rights of Persons with Disabilities Act 2016 (hereinafter RPWD Act 2016). The RPWD Act 2016 (Act 49 of 2016) was enacted by the Indian Parliament to fulfill India’s obligation to implement the UN Convention on the Rights of Persons with Disabilitis (UNCRPD). It received the assent of Hon'ble President of India on 27th Dec 2016 and notified in Gazette of India on 28th Dec 2016. The Act came in to effect on 19 April 2017 vide a notification.

The new list of recognized disabilities added as an annexure to the Act includes three blood disorders, people of Short Stature, Acid Attack Survivors, Parkinson disease, Chronic neurological conditions, Multiple Sclerosis etc. 

Following are the 21 disabilities included in the RPWD Act 2016:
  1. Blindness
  2. Low-vision
  3. Leprosy Cured persons
  4. Hearing Impairment (deaf and hard of hearing)
  5. Locomotor Disability
  6. Dwarfism
  7. Intellectual Disability
  8. Mental Illness
  9. Autism Spectrum Disorder
  10. Cerebral Palsy
  11. Muscular Dystrophy
  12. Chronic Neurological conditions
  13. Specific Learning Disabilities
  14. Multiple Sclerosis
  15. Speech and Language disability
  16. Thalassemia
  17. Hemophilia
  18. Sickle Cell disease
  19. Multiple Disabilities including deaf-blindness
  20. Acid Attack victim
  21. Parkinson’s disease

Here is the Schedule to the RPWD Act 2016 reproduced: 

[See clause (zc) of section 2]

1. Physical disability.—
A. Locomotor disability (a person's inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including—
(a) "leprosy cured person" means a person who has been cured of leprosy but is suffering from—
(i) loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;
(ii) manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;
(iii) extreme physical deformity as well as advanced age which prevents him/her from undertaking any gainful occupation, and the expression "leprosy cured" shall construed accordingly;
(b) "cerebral palsy" means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;
(c) "dwarfism" means a medical or genetic condition resulting in an adult height of 4 feet 10 inches (147 centimeters) or less;
(d) "muscular dystrophy" means a group of hereditary genetic muscle disease that weakens the muscles that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;
(e) "acid attack victims" means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

B. Visual impairment—
(a) "blindness" means a condition where a person has any of the following conditions, after best correction—
(i) total absence of sight; or
(ii) visual acuity less than 3/60 or less than 10/200 (Snellen) in the better eye with best  possible correction; or
(iii) limitation of the field of vision subtending an angle of less than 10 degree.
(b) "low-vision" means a condition where a person has any of the following conditons, namely:—
 (i) visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200  (Snellen) in the better eye with best possible corrections; or
(ii) limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.
C. Hearing impairment—
(a) "deaf" means persons having 70 DB hearing loss in speech frequencies in both ears;
(b) "hard of hearing" means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;
D. "speech and language disability" means a permanent disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes.

2. Intellectual disability, a condition characterised by significant limitation both in intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including—
(a) "specific learning disabilities" means a heterogeneous group of conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;
(b) "autism spectrum disorder" means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person's ability to communicate, understand relationships and relate to others, and is frequently associated with unusal or stereotypical rituals or behaviours.
3. Mental behaviour,—
"mental illness" means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a conditon of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

4. Disability caused due to—

(a) chronic neurological conditions, such as—
(i) "multiple sclerosis" means an inflammatory, nervous system disease in which the myelin sheaths around the axons of nerve cells of the brain and spinal cord are damaged, leading to demyelination and affecting the ability of nerve cells in the brain and spinal cord to communicate with each other;
(ii) "parkinson's disease" means a progressive disease of the nervous system marked by tremor, muscular rigidity, and slow, imprecise movement, chiefly affecting middle-aged and elderly people associated with degeneration of the basal ganglia of the brain and a deficiency of the neurotransmitter dopamine.
(b) Blood disorder—
(i) "haemophilia" means an inheritable disease, usually affecting only male but transmitted by women to their male children, characterised by loss or impairment of the normal clotting ability of blood so that a minor would may result in fatal bleeding;
(ii) "thalassemia" means a group of inherited disorders characterised by reduced or absent amounts of haemoglobin.
(iii) "sickle cell disease" means a hemolytic disorder characterised by chronic anemia, painful events, and various complications due to associated tissue and organ damage; "hemolytic" refers to the destruction of the cell membrane of red blood cells resulting in the release of hemoglobin.
5. Multiple Disabilities (more than one of the above specified disabilities) including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems.

6. Any other category as may be notified by the Central Government.