Showing posts with label Supreme Court of India. Show all posts
Showing posts with label Supreme Court of India. Show all posts

Friday, January 13, 2023

Supreme Court bench issued notice to centre on enforcements of Provisions of RPWD Act in a PIL by group of parents and professionals

Court: Supreme Court of India

Bench: Chief Justice DY Chandrachud and Justice PS Narasimha

Case Title: Seema Girija And Anr. v. UoI And Ors. 

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

Date of Order: 13 Jan 2023

Brief:

A Bench headed by the Chief Justice of India (CJI) issued notice to the Union of India and the Ministry of Social Justice and Empowerment in a plea seeking enforcement of rights of persons with disabilities by constituting District Level Committees for each district to implement the Right of Persons with Disabilities Act 2016 [“RPwD Act”].

The petitioner,  a member of a group called “Together We Can” which is forum for parents, professionals, and other stakeholders working for rights of children with disabilities. 

The petition highlighted that the RPwD Act inter alia recognise the need to have a micro level selfcheck mechanism to ensure the needs of persons with disabilities are met and the Act is properly implemented at the lowest level. Section 72 of the RPwD Act envisages constitution of a ‘District-Level Committee’ [“DLC”] for each district for this purpose. These DLCs are meant to comprise of not just state officials but also respectable members of the local community. DLCs give teeth to the RPwD Act. Having a grassroot-level supervisory body like the DLC in place can be the safest way to ensure enforcement of the provisions of a statute.

The bench in its order stated –

"Petitioner has highlighted that diverse provisions of RPwD Act 2016 haven't been implemented by the States. Petitioners have placed on the record a copy of the fifth meeting of the Central advisory board of disability held on 24 June 2022 under the auspices of the Ministry of social Justice and Empowerment.. The
 minutes of the meeting indicate that as of the date of the meeting -

1. Only 10 states had constituted separate departments for dealing with entitlements of persons dealing with disabilities;
2. Only 12 states have independent commissioners;
3. The States of Andhra Pradesh, Maharashtra and Union Territories of Dadra and Nagar Haveli, Daman and Diu, and Ladakh are yet to notify rules under the statute. They have not constituted the state advisory boards.

The petitioner also submitted that Section 72 of the act which envisaged a District level Committee for each State for the purpose of ensuring that the needs of persons with disabilities are met was yet to be fully implemented. Further, though Section 101(2)(a) empowers the State governments to frame rules regarding the functions of the district level committees, without the formulation of specific rules, the committees would remain ineffective."

Accordingly, the bench issued the following direction –

"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."

Read the Copy of the order below:

Monday, December 5, 2022

Supreme Court of India appoints Committee for Accessibility Audit of Supreme Court Premises on International Day of Persons with Disabilities

05 Dec 2022, New Delhi, India

The Chief Justice of India (CJI) Dr D Y Chandrachud has decided for a comprehensive accessibility audit of the Supreme Court premises, with an aim of ensuring accessibility in the justice system and understanding the hardships faced by the specially-abled persons, in their interface with the Supreme Court.

On the International Day of Persons with Disabilities observed on December 3 every year, the CJI has constituted a "Supreme Court Committee on Accessibility" chaired by a sitting judge of the apex court. The initiative by the CJI is in lines with the World Health Organisation's this year theme "Transformative solutions for inclusive development: the role of innovation in fuelling an accessible and equitable world".

Justice S Ravindra Bhat will be in charge of the “Supreme Court Committee on Accessibility,” which has been tasked with carrying out an extensive accessibility audit of the Supreme Court’s facilities extending to both physical as well as technological accessibility. .

The committee’s member secretary will be an officer from the Supreme Court registry.  In addition, the committee consists of:

  • A Bengaluru-based professor from NLSIU;
  • Supreme Court employee with different abilities;
  • A Supreme Court Bar Association-nominated Differently Abled Advocate;
  • A person suggested by NALSAR University’s Centre for Disability Studies (Mr. Nilesh Singit)

The audit will cover both technology and physical accessibility. A questionnaire for people with disabilities who visit the Supreme Court premises to determine the nature and scope of their issues has also been assigned to the Committee for preparation and distribution. 

The Committee will also solicit input from advocates, litigants, interns, and other members of the Supreme Court. The Committee will prepare a report that will include the audit and survey results and recommendations for removing access barriers.

Tuesday, August 16, 2022

Supreme Court of India issues Guidelines on writing simple, accessible and lucid judgements

Court:               Supreme Court of India

Bench:               Justices DY Chandrachud and AS Bopan

Case No. :         CA 5305 of 2022

Caste Title:       State Bank of India vs Ajay Kumar Sood  

Date of Order:  16 August 2022

Notes: 

Judgments - Broad guidelines on judgment writing - While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles -

Incoherent judgments have a serious impact upon the dignity of our institutions -

"IRAC‟ method of judgment writing - The judge must write to provide an easy-tounderstand analysis of the issues of law and fact which arise for decision.

Judgments - Accessibility - Judgments to carry paragraph numbers and a table of contents in a longer version - Judgments should be accessible to persons from all sections of society including persons with disability - They should not have improperly placed watermarks and should be signed using digital signatures - They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens. 

Synopsis

The purpose of a judgment is not to "confuse or confound the readers", the Supreme Court of India has urged the Courts and Tribunals to "provide an easy-tounderstand analysis of the issues of law and fact" in their verdicts. The crucial observation was made by the SC Bench while dealing with a judgment of the Himachal Pradesh High Court which was found to be "incomprehensible".

"Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded". said the bench.

The Bench also made following important observations:

The work of a judge cannot be reduced to a statistic about the disposal of a case.

Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.

A judgment is a manifestation of reason

A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge's work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest. The scrutiny is first and foremost by the person for whom the decision is meant - the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrumen  in fostering the rule of law and in curbing rule by the law 

Judgment writing is a layered exercise

Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window - an insight - into the work of the court in espousing these values as an integral element of the judicial function.

Brevity is an unwitting victim of an overburdened judiciary

Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cutcopy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.

It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility access of the judgments. A Table of Contents in a longer version assists access to the reader.

IRAC Method Of Judgment Writing

  1. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the "Issue, Rule, Application and Conclusion‟ are easily identifiable. The well-renowned "IRAC‟ method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
  2. The "Issue‟ refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment.
  3. The "Rule‟ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified.
  4. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the "Application‟ section.
  5. Finally, it is always useful for a court to summarize and lay out the "Conclusion‟ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.

Accessibility

On the note of accessibility access , the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.

While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.


Read the judgement embedded below:

Tuesday, November 23, 2021

Supreme Court - Rights of persons with disabilities are not be diluted but limiting them to only those with benchmark disabilities

Court: The Supreme Court of India

Bench: Dr Dhananjaya Y Chandrachud, Justice ,  A.S. Bopanna, Justice

Case No:  Civil Appeal No. 7000 of 2021 (Arising Out of SLP (C) No.18591 of 2021)

Case Title: Avni Prakash Vs. National Testing Agency (NTA) & Ors.

Date of  Order: 23 November 2021

Law//Act: The Rights of Persons with Disabilities Act, 2016, 

Judgement Authored by : Dr Dhananjaya Y Chandrachud, Justice

Background

The Supreme Court (SC) has cautioned that the Rights of persons with disabilities should not be curtailed by the application of a higher threshold prescribed only for ‘persons with benchmark disabilities’.

The bench pronounced its verdict on a plea by a female National Eligibility cum Entrance Test (NEET) 2021 candidate with dysgraphia (which is a learning disability that inhibits the ability to write), who was agrreived by the denial  of an additional one hour’s time for attempting the paper by the examination centre. She had sought that she either be allowed to sit for a re-examination or be reasonably or proportionately compensated by way of grace marks or elimination of negative marking or otherwise.

Case in brief:

The appellant is a person with dysgraphia- a specified disability listed in 2(a) of the Schedule to the RPwD Act. Her disability has been assessed as 40 percent permanent disability-thus falls within the definition of  a person with a benchmark disability under Section 2(r) of the RPwD Act. She was denied the compensatory time while appearing for the NEET Examination conducted by the NTA. 

The Bench at SC framed issue as to whether the appellant was entitled to an hour’s worth of compensatory time owing to her PwD status under the NEET Bulletin 2021 and the Guidelines for Written Examination issued by the Union Ministry of Social Empowerment and Justice issued on August 29, 2018.

While the matter was heard at the Mumbai High Court, the National Testing Agency (NTA), had, on October 11, 2021 demanded the procurement of a medical certificate as per the format contained in Appendix VIII-A and from a designated centre specified in Appendix VIII-B of the Regulations on Graduate Medical Education (Amendment), 2019, in order to claim the one-hour compensatory time. 

However, the Supreme Court observed that it is evident from the format prescribed under Appendix VIII-A that it cannot be issued at a stage before the declaration of results, and will only be considered for admission to the medical courses. The bench held that:

“Para 5.4(b) of the NEET Bulletin 2021 (extracted above) indicates that the appellant was entitled to compensatory time of one hour for an examination of three hours, irrespective of her reliance on a scribe. Para 5.3 indicates that the requirement of a certificate in Appendix VIII-A applies after the results are declared.”

The court clarified that the Right to Inclusive Education is a right enforceable at the examination stage (as per Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (as per Section 32 under Chapter VI).

The distinction between Person with Disability (PwD) and Person with Benchmark Disability (PwBD)

The court then went on to establish the distinction between PwD and PwBD under the RPwD Act. It Reffering to its decision in Vikash Kumar vs. Union Public Service Commission, in which SC hgad rejected the submission that only PwBD candidates can be provided with the facility of a scribe and held that the petitioner was entitled to reasonable accommodation even if he did not suffer from a benchmark disability.

“These rights and entitlements which are conferred upon PwD cannot be constricted by adopting the definition of benchmark disability as a condition precedent or as a condition of eligibility for availing of the rights. Benchmark disability, as defined in Section 2(r), is specifically used in the context of Chapter VI.  Undoubtedly, to seek admission to an institution of higher education under the 5 per cent quota, the candidate must, in terms of Section 32(1)10, fulfil the description of a PwBD. But equally, where the statute has conferred rights and entitlements on PwD, which is wider in its canvass than a benchmark disability, such rights cannot be abrogated or diluted by reading into them the notion of benchmark disability” clarifid the SC.

Hence, the standards of benchmark disabilities shall apply in situations where admission is sought into an institution of higher education under the five percent quota, in accordance with Section 32(1). However, the right to avail reasonable accommodation cannot be subjected to the same scrutiny.

Thus, the Right to Inclusive Education is a right enforceable at the examination stage (Section 17(i) under Chapter III), distinct from the rights that apply during the admission stage (Section 32 under Chapter VI).

The Court emphasised on the provisions envisaged under the RPwD Act with regard to inclusive education for PwD in Chapter III. Section 17 of Chapter III lays down specific measures to promote and facilitate inclusive education for students with disabilities. Among other inclusive measures, sub-section (i) provides for the duty of the State to make suitable modifications in the curriculum and the examination system to meet the needs of students with disabilities. This duty can be fulfilled by providing extra time for the completion of examination papers and/or the facility of a scribe. Section 18 provides that the government and local authorities are duty-bound to take measures to promote, protect and ensure participation of PwD in adult education and continuing education programmes on an equal footing with others.

The provision for reservation in Chapter VI specifically directed towards PwBD students is different from the provisions in Chapter III for PwD students. Essentially, it can be concluded that PwD encompasses a wider group, of which PwBD is a sub-set. The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination. The denial of reasonable accommodation to a PwD would certainly result in discrimination, especially when the same is denied by applying stricter thresholds meant only for PwBD.

The Court, therefore, held that there was a gross miscarriage of justice in this case by the High Court directing the appellant, who is aggrieved by the denial of a compensatory one hour, to seek a certificate in terms of Appendix VIII-A, on the basis of a statement made by the counsel for the NTA. The injustice meted out to the appellant occurred, noted the apex court, because of (i) a vague and imprecisely defined NEET Bulletin 2021, and (ii) the absence of adequate training to the second respondent which was allotted as the appellant’s centre.

Court’s directions

The bench, in accordance with the decision in National Testing Agency vs. Vaishnavi Vijay Bhopale, ruled out the possibility of conducting a re-examination for the appellant owing to impracticability and uncertainty due to delay in results. However, the Court emphasised that the NTA cannot shirk or abrogate its responsibility to rectify the injustice which had been caused to the appellant, and must therefore consider extrapolation of marks or grant compensatory marks or adopt a ‘no negative scheme’, after applying their mind, ruled the Court.

The principle of reasonable accommodation is at the heart of the right to inclusive education, premised on equality and non-discrimination.

The court further directed the NTA to strictly ensure that the provisions which are made at the NEET in terms of the rights and entitlements available under the RPwD Act are clarified in the NEET Bulletin by removing ambiguity. It observed that, “Facilities which are provided by the law to PwD shall not be constricted by reading in the higher threshold prescribed for PwBD.”

Read the judgement below:

Thursday, June 11, 2020

Supreme Court says Reservation not a Fundamental Right on pleas for OBC Quota in TN Medical Colleges

Dear Colleagues,

Hon'ble Supreme Court bench headed by Justice L Nageshwara Rao today expressed that the reservation of seats to certain communities was not a Fundamental Right and refused to act on a petition filed by all political parties from Tamil Nadu seeking 50% OBC reservation in the all-India NEET seats surrendered by states.

It was argued that the Union Ministry for HRD and the Tamil Nadu State government were not following the state policy on reservations in filling up seats surrendered by states in NEET, including admissions for undergraduate, graduate, postgraduate, dental and diploma courses in medicine in private and government colleges.

Justice LN Rao lauded the sentiment behind the move, which had parties of all shades from the state on the same page, as “unusual” for Tamil Nadu  and said “We appreciate the concern of all political parties for the welfare of Backward Classes. But reservation is not a Fundamental Right.”

"Right to reservation is not a fundamental right. That's the law today," remarked Justice Rao, as the bench took up petitions claiming violation of fundamental rights by not keeping seats reserved in the medical colleges in Tamil Nadu for its OBC students.

Petitioners argued that  OBC reservations had been introduced after a long political fight but was being denied to the affected sections in the state and insisted that non-implementation of such reservations in the state amounted to violation of Fundamental Rights of its residents.

However the Hon'ble Supreme Court  remained unimpressed with such submissions, and questioned how a petition under Article 32 could be maintainable when there is no fundamental right to have reservation benefits.

"Whose fundamental rights are being violated? Article 32 is available only for violation of fundamental rights." expressed the Bench.

When argued that the premise of the cases are violation of the law on reservation by the Tamil Nadu government,  Hon'ble Court asked the petitioners to approach the Madras High Court saying “You should withdraw it and go to the high court. You are only interested in 50% reservation in Tamil Nadu.”

It is pertinent to mention that in February 2020, the apex court had held there is no fundamental right to claim reservation in public jobs and no court can order a state government to provide for reservation to SC/STs.

Friday, January 25, 2019

Supreme Court says people above 50% of hearing and visual disability can not perform as judge! [Judgement included]

Dear Colleauges,


However, a Supreme Court bench of Justice Ashok Bhushan and Justice KM Joseph on 22 Jan 2019 in the case titled V. Surendra Mohan vs. State of Tamil Nadu, shattered all my progressive writings and efforts to see more blind judges in India. The bench upheld the Tamil Nadu State’s policy of restricting the eligibility of blind and deaf candidates for the reserved posts of 'civil judge' to those with 40-50% of their respective disabilities. The SC Bench held,   "A judicial officer in a state has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction i.e. fair, logical and reasonable  and that it does not contravene any of the provisions of the Disabilities Act 1995 or any other statutory provision."

I have seen judges's inherent biases and pre-conceived notions about disabling conditions often reflected in their judgements referring to persons with disabilities as unfortunate, crippled, wheelchair bound. This shows their lack of knowledge on disabling conditions and disability rights, however, this judgement has left me totally shaken. A common man's ignorance is pardonable, but for MyLords, whose pen has the ability to impact fate of millions of Indians with disabilities, it can be devastating for the hopes of many of them. The judges need to be well read and aware about the evolving capabilities of persons with disabilities with the advent of technology and science and the concept of reasonable accommodation that the UN Convention on the Rights of Persons with Disabilities provide. It is easier to label some one as 'incompetent' than set your own house in order. That is what the judiciary has done through this judgement despite the post of a judge identified as suitable to be held by a blind person by the Expert Committee constituted  by govt. of India, a bench renders them unsuitable!. Technically the bench should have refrained from stepping in to the shoes of the Expert Committee.

In the instant case, a person with seventy (70) percent blindness was denied appointment as a judge because he was more than fifty (50) percent threshold, the specified outer limit set by the Tamil Nadu State. Surprisingly, the Supreme Court came to the conclusion in the case that persons with more than the specified range of blindness are not eligible because they cannot perform functions of a judge!

In the background that several blind lawyers and judges are functioning well and the post is also identified as suitable for persons with disabilities by an Expert Committee under the Persons with Disabilities Act 1995 and that the Act makes no restrictions of degree of  percentage of disabilities for providing job reservations and other benefits etc which are equally available to all persons above 40% disabilities, this judgement looks absurd.  Instead of holding that differentiation based on extent of blindness is invalid and working towards facilitating accessibility of ICT, processes and reasonable accommodations for judges with blindness, the Court decided to justify the decision of the Government and the Madras High Court, which took a stand that completely blind persons cannot perform the so called strenuous tasks of reading, writing, communicating, examining witnesses, following procedures, advising advocates, etc.

Background of the case

In 2012, the Tamil Nadu Public Service Commission received a requisition from the State Government for filling up the vacancy posts of Civil Judge. The Commission wrote a letter to both the State Government as well as the High Court proposing to notify the percentage of disability as 40%-50% for partially blind and partially deaf for selection. The High Court communicated its approval to the aforesaid proposal which was also consented to, by the State of Tamil Nadu. The TNPC subsequently went on to publish the notification.

V. Surendra Mohan applied for the role of civil judge, however, his application was rejected on the ground that he was 70% blind (instead of below 50%). He challenged this decision in the Madras High Court upon which he was permitted to sit for the interview. Following his interview, Mohan’s application was again rejected. As a result, V. Surendra Mohan filed a writ petition in the Madras High Court. In 2015, the High Court held that the TNPC’s decision was lawful as it was in line with the State’s policy.

In 2019, Mohan appealed to the Supreme Court, challenging the rejection of his application as well as the policy on the basis of which his application was rejected, alleging it as arbitrary and unjustified.

The Bench comprising Justice Ashok Bhushan and Justice KM Joseph rejected this submission. It remarked that “a judicial officer in a State has to possess reasonable limit of the faculties of hearing, sight and speech in order to hear cases and write judgments and, therefore, stipulating a limit of 50% disability in hearing impairment or visual impairment as a condition to be eligible for the post is a legitimate restriction”.

The Supreme Court’s view that a totally blind person cannot function as a judge is trashed by live examples of  several successful blind judges in India and beyond. Accessible work place, computers with screen reading softwares, pleadings and documents in accessible format and reasonable accommodations is what is needed for their inclusion and this makes so many lawyers and judges do wonderfully well in their workplace.

Surprisingly, neither the State government or the High Court nor the Supreme Court have given any reasons as to justification of  50% disability cut-off when Persons with Disabilities Act makes so such distinction. No empirical evidence or research has been put forward to support that beyond the 50% threshold, a person would not be able to effectively perform his duties as a judge.  Supreme Court blindly relies on the government wisdom on this 50% cut-off, without questioning its scientific basis. It is also unclear as to how an advertisement by TNPSC pursuant to a “letter” from the government attained the status of an overriding legal norm. This matter wasn't referred to by the State to the Experts Committee. Decision was taken by babus based on their own whims and fancies and since it affected judiciary, the court also felt safe as they had not to change any infrastructure to accommodate a blind judge in their system. It is almost another level of apartheid visible in the present order. 

The present judgement also literally backtracks its own judgement dated 22 January 2019 wherein the Hon'ble Supreme Court had set deadlines to make public places accessible to persons with visual impairment. It had expressed that “it becomes imperative to provide such facilities so that these persons also are ensured level playing field and not only they are able to enjoy life meaningfully, they contribute to the progress of the nation as well.”  Instead of providing level playing field, this judgement deprives blind candidates from their established legal right  arbitrarily. This order is a black spot on the image of Indian Supreme Court which has otherwise been very proactive for the rights of marginalised communities and has always batted for their inclusion in constitutional spirit. Therefore, this needs to be remedied soon in coming days.

Read the judgement in PDF below in V. Surendra Mohan vs. State of Tamil Nadu, Civil Appeal No. of 83 of 2019:



Friday, December 15, 2017

Supreme Court directs Institute of Higher Learnings to comply with RPWD Act and provide Accessibility to students with disabilities in infrastructure and pedagogy

Court: Supreme Court of India

Bench: Justice A.K. Sikri and Justice Ashok Bhushan

Case No. :Writ Petitioner (Civil) No. 292 OF 2006

Case Title: Disabled Right Group vs Union Of India 

Date of Judgement/ Order:  15 December, 2017    

                                                                                           

                                                                                     REPORTABLE

                                       IN THE SUPREME COURT OF INDIA

                                          CIVIL ORIGINAL JURISDICTION

                                     WRIT PETITION (CIVIL) NO. 292 OF 2006


DISABLED RIGHTS GROUP & ANR.                          .....PETITIONER(S)

                                          VERSUS

UNION OF INDIA & ORS.                                          .....RESPONDENT(S)

                                                        WITH

          WRIT PETITION (CIVIL) NO. 997 OF 2013 (GEORGE PHILIPS vs. U.O.I .


Parties in Main Petition - WP (Civil) No. 292 of 2006

Petitioners

1     DISABLED RIGHT GROUP
       THROUGH ITS CONVENOR MR. JAVED ABIDI, HAVING ITS OFFICE AT D-31, 
        GROUND FLOOR, PANCHSHEEL ENCLAVE, NEW DELHI 
  
2      POOJA SHARMA S/D/W/Thru:- MR. R.K. SHARMA
        H.NO. 22, TYPE IV, HYDEL COLONY, FIELD HOSTEL COMPOUND, 
        VICTORIA PARK, MEERUT, UTTAR PRADESH

Respondent(s)

1     UNION OF INDIA 
       THE SECRETARY MINISTRY OF HUMAN RESOURCE DEVELOPMENT
       MINISTRY OF HUMAN RESOURCE DEVELOPMENT SHASTRI BHAWAN, 
       DR. RAJENDRA PRASAD ROAD, , DISTRICT: NEW DELHI 

2     THE SECRETARY, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
       SHASTRI BHAWAN, DR. RAJENDRA PRASAD ROAD, NEW DELHI 

3     CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES
       SAROJINI HOUSE, 6, BHAGWAN DASS ROAD, NEW DELHI 

4     THE DIRECTOR, SYMBIOSIS (A DEEMED UNIVERSITY)
       DR. S.B. MUJUMDAR, SENAPATI BAPAT ROAD,
       PUNE , MAHARASHTRA

5     THE CHIEF SECRETARY STATE OF MAHARASHTRA
       SECRETARIAT, MANTRALAYA, MUMBAI ,  MAHARASHTRA

6     THE CHIEF SECRETARY, GOVERMENT OF NCT OF DELHI
       NEW SECRETARIAT BUILDING, IP ESTATE,  NEW DELHI 
  
7     THE CHIEF SECRETARY, STATE OF RAJASTHAN
       GOVERNMENT SECRETARIAT, JAIPUR, RAJASTHAN , 

8     THE CHIEF SECRETARY, STATE OF KARNATAKA
       VIDHAN SOUDHA, BANGALORE, KARNATAKA
  
9     THE CHIEF SECRETARY, STATE OF ANDHRA PRADESH
       SECRETARIAT, HYDERABAD,  ANDHRA PRADESH
  
10   THE CHAIRMAN, UNIVERSITY GRANT COMMISSION
       BAHADUR SHAH ZAFAR MARG, NEW DELHI ,  
  
11   DR. A.JAY AGOVIND, THE VICE CHANCELLOR
       NATIONAL LAW SCHOOL OF INDIA, NAGARBHAVI, 
       BANGALORE , KARNATAKA
 
12   PROF. RANBIR SINGH THE VICE CHANCELLOR
       NALSAR UNIVERSITY OF LAW, JUSTICE CITY, 
       SHAMEERPET, RANGAREDDY, TELANGANA
  
13   JUSTICE N.N. MATHUR, THE VICE CHANCELLOR
       NATIONAL LAW UNIVERSITY, JODHPUR,NH-65, NAGOUR ROAD, 
       MANDORE, JODHPUR, RAJASTHAN
  
14   THE SECRETARY, BAR COUNCIL OF INDIA
       21, ROUSE AVENUE, INSTITUTIONAL AREA, 
       DEEN DAYAL UPADHYAY MARG , NEW DELHI 


Parties in Tagged Petition - WP (Civil) No. 997 of 2013

Petitioner

1     GEORGE PHILIPS S/D/W/Thru:- JOSEPH PHILIPS
       R/O D-2/199, KAKA NAGAR, NEW DELHI 

Respondent(s)
  
1     UNION OF INDIA, THROUGH THE SECRETARY, 
       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT,
       MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, 
       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  
2     MINISTRY OF SOCIAL WELFARE, THROUGH THE SECRETARY
       GOVT. OF NCT OF DELHI, DELHI SECRETARIAT, NEW DELHI 
  
3     CENTRAL COORDINATION COMMITTEE, THE CHAIRMAN
       DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT, 
       SHASTRI BHAWAN, NEW DELHI, NEW DELHI
  
4     THE CHIEF COMMISSIONER FOR PERSONS WITH DISABILITIES 
       SAROJINI HOUSE, 6 BHAGWAN DAS ROAD, NEW DELHI 


JUDGMENT

A.K. SIKRI, J.

Three issues are raised in this petition which is filed in public interest, for the benefit of persons suffering from ‘disabililty’ as per the definition contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act) 1995 (hereinafter referred to as the ‘Disabilities Act, 1995’) which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘Disabilities Act, 2016’). The first issue related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016. Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopaedic disabled persons so that they are able to freely move in the educational institution and access the facilities. Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of their disability, to enable them to undertake their studies effectively.

We may state at the outset that though the petition as originally filed had confined these issues only to law colleges. In view of the fact that these issues are of seminal importance, this Court decided to extend the coverage by encompassing all educational institutions.

2) As can be discerned from the number assigned to this writ petition, it was filed in the year 2006 and, thus, is pending for eleven years. The reason was that this Court has been calling for the status report(s) from the respondents/Government Authorities from time to time about the implementation of the Disabilities Act insofar as provisions relating to the aforesaid aspects are concerned. Since the matter was ripe for passing final orders and directions, we deemed it proper to hear the counsel for the parties at length so that the writ petition is disposed of by giving final directions in this behalf.

(I) Re: 3% Reservation of Seats in Educational Institutions

3) Section 39 of the Disabilities Act, 1995 reads as under:

“Section 39 : All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seat for persons with disabilities.”

4) As per this provision, all Government educational institutions as well as other educational institutions which are receiving aid from the Government are supposed to reserve seats for the benefit of persons with disabilities, which reservation shall not be less than 3%. Thus, 3% of the seats is the minimum reservation and it can be even more than 3%. This provision had come up for discussion before this Court in All Kerala Parents Association of the Hearing Impaired v. State of Kerala1 and the Court issued following directions therein:

“We...hold that Section 39 deals with the reservation of seats for persons with disabilities in government educational institutions as well as educational institutions receiving aid from the government, and necessarily therefore the provison thereof must be complied with.”

5) Disabilities Act, 2016 makes more exhaustive provisions insofar as providing of educational facilities to the persons with disabilities is concerned. Section 31 confers right to free education upon children with benchmark disabilities who are between the age of 6 to 18 years. This provision is made notwithstanding anything contained in the Rights of 1 2002 (7) Scale 198 Children to Free and Compulsory Education Act, 2009. Section 32 makes provisions for reservation in higher educational institutions.

Section 34 provides for reservation in employment. Since, we are concerned with reservation of seats in educational institutions and as Section 32 directly deals with the same, we reproduce that provision hereunder:

“32. (1) All Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. seats for persons with benchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.”

6) The educational institutions covered by this provision are not only the Government institutions of higher education but all those higher education institutions which are receiving aid from the Government.

Other pertinent aspect is that the extent of reservation is increased from 3% under Disabilities Act, 1995 to 5% under this Disabilities Act, 2016. One more important improvement made in Disabilities Act, 2016 over the earlier Act is that such provisions are made for ‘persons with bench mark disabilities’. This expression is defined in Section 2(r) which reads as under:

“Section 2(r) “person with benchmark disability” means a person with not less than forty per cent. of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.”

7) It, thus, hardly needs to be emphasised that such educational institutions are bound to reserve seats from persons suffering from disability. Notwithstanding the same, grievance of the petitioner is that the educational institutions have not been adhering thereto.

8) No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligation. Needless to mention, appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions.

(II) & (III) Re: Provision for accessibility as well as facilities

9) In another judgment pronounced today itself in the case of Rajive Raturi v. Union of India & Ors. (Civil Appeal No. 243 of 2005 with Anr.), this very Bench has given detailed directions for making appropriate provisions for accessibility of handicapped persons, though the scope of that petition was confined to persons suffering from visual impairment. However, various aspects discussed and directions given for making suitable provisions in this behalf would benefit persons suffering from other disabilities as well. Therefore, the position of law discussed in detail in the said judgment and the directions issued therein need not be repeated for the sake of brevity. We would, however, recapitulate following provisions contained in Disabilities Act, 2016: 

Section 2(i) - ‘establishment includes a Government establishment and private establishment” Section 2(k) - ‘Government establishment’ means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government.

Section 2(v) - “private establishment” means a company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as the appropriate Government may, by notification, specify; (w) “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways; Section 2(w) - “public building” means a Government or private building, used or accessed by the public at large, including a building used for educational or vocational purposes, workplace, commercial activities, public utilities, religious, cultural, leisure or recreational activities, medical or health services, law enforcement agencies, reformatories or judicial foras, railway stations or platforms, roadways bus stands or terminus, airports or waterways;

Section 2(zd) - “transportation systems” includes road transport, rail transport, air transport, water transport, para transit systems for the last mile connectivity, road and street infrastructure, etc; Section 2(ze) - “universal design” means the design of products, environments, programmes and services to be usable by all people to the greatest extent possible, without the need for adaptation or specialised design and shall apply to assistive devices including advanced technologies for particular group of persons with disabilities. Section 2(b) - “appropriate Government” means,—

(i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonments Act, 2006 (41 of 2006), the Central Government;

(ii) in relation to a State Government or any establishment, wholly or substantially financed by that Government, or any local authority, other than a Cantonment Board, the State Government.

Section 16 mandates the appropriate Government and the local authorities to endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall make buildings, campus and various facilities accessible.

Section 25(1)(b) mandates the appropriate Government and local authority to take necessary measures for the persons with disabilities to provide barrier-free access in all parts of Government and private hospitals and other health care institutions and centres. Section 40 mandates the Central Government to frame Rules and laying down the standards of accessibility for physical environment, transportation system, information & communication system and other facilities & services to be provided to the public in urban and rural areas. Rule 15 deals with accessibility standards for public buildings, passenger bus transport and information and communication technology. As regards public buildings, the accessibility standards prescribed under the Harmonised Guidelines and Space Standards for barrier-free built environment for persons with disabilities and elderly persons issued by Ministry of Urban Development have been adopted. This implies that all the public buildings are now required to conform to these standards.

10) It hardly needs to be emphasised that Disabilities Act is premised on the fundamental idea that society creates the barriers and oppressive structures which impede the capacities of person with disabilities. Capability theorists like Martha Nussbaum are of the opinion that there cannot be a different set of capacities or a different threshold of capabilities for persons with disabilities. This raises the critical issue of creating a level playing field whereby all citizens to have equality of fair opportunities to enable them to realise their full potential and experience well-being. To ensure the level playing field, it is not only essential to give necessary education to the persons suffering from the disability, it is also imperative to see that such education is imparted to them in a fruitful manner. That can be achieved only if there is proper accessibility to the buildings where the educational institution is housed as well as to other facilities in the said building, namely, class rooms, library, bathrooms etc. Without that physically handicapped persons would not be able to avail and utilise the educational opportunity in full measure.

11) Various theories on different models of disability have emerged, namely, the Social Model of Disability, the Medical Model of Disability, the Rights Base Model of Disability, the Model of Ethical and Philosophical Status, the Economic Model of Disability etc 2. It is not necessary to delve into these different models of disabilities. However, for the purpose of the present case, some comments are required on the Social Model of Disability. The Social Model of Disability locates disability as being socially constructed through the creation of artificial attitudinal, organisational and environmental barriers. Impairment is regarded as being a normal part of the human condition, with everyone experiencing impairment differently and having different access needs. Life is accepted as including negative experiences, and impairment may 2 For detailed discussion, see Theoretizing the Models of Disability Philosophical Social and Medical Concepts-An Empirical Research based on existing Literature by Shanimon. S. and Rateesh. K. Nair be - but is not necessarily - one of them. Disabled people are defined as being people who experience the unnecessary barriers created by society within their daily life. Social Model of disability has gained ground in the international debate. This views disability as a social construct and emphasizes society's shortcomings, stigmatization and discrimination in its reaction to persons with disability. It distinguishes between functional impairments (disability) both of a physical and psychological nature, and the loss of equal participation in social processes that only arises through interaction with the social setting (handicap). These developments have contributed to a new (WHO) model, which bears in mind social as well as functional and individual factors in its classification of health and health-related areas. Keeping in view the above, proper facilities are need to be provided to differently-abled persons while having higher education.

12) Insofar as the rights base approach is concerned, that has been narrated in detail in Rajive Raturi’s judgment. We may add that a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination. Such requirement is to ensure that even a student with disability, after proper education, will be able to lead an independent, economically self sufficient, productive and fully participatory life. This rights-based approach is an inclusive approach which class for the participation of all groups of the population, including disadvantaged persons, in the development process. Inclusive development builds on the idea of ‘Society for All’ in which all people are equally free to develop their potential, contribute their skills and abilities for the common good and to take up their entitlements to social services. It emphasises strengthening the rights of the people with disabilities, and foster their participation in all aspects of life. A disability is only actually a disability when it prevents someone from doing what they want or need to do. A lawyer can be just as effective in a wheelchair, as long as she has access to the courtroom and the legal library, as well as to whatever other places and material or equipment that are necessary for her to do her job well. A person who can’t hear can be a master carpenter or the head of a chemistry lab, if he can communicate with clients and assistants. A person with mental illness can nonetheless be a brilliant scholar or theorist3. The aforesaid discussion amply justifies right of access to students with disabilities to educational institutions in which they are admitted.

3 We have a celebrated examples of John Nash, a noted mathematician who earned laurels by getting noble prize and Stephen Hawkins.

13) It would be pertinent to mention at this stage that in the guidelines for development grant to colleges framed by the University Grants Commission (UGC), the UGC has specifically made provisions concerning ‘schemes for persons with disabilities’. There is a specific scheme in respect of Higher Education for Persons with Special Needs (HEPSN). This HEPSN scheme has three components, namely,

(i) Establishment of Enabling Units for differently-abled persons. The function of this unit as enumerated therein includes creating awareness about the needs of differently-abled persons, and other general issues concerning their learning. This special unit is to be guaranteed by a faculty member to be nominated by the Head of the Institution.

(ii) Component 2 of the scheme deals with providing access to differently-abled persons. For this purpose, UGC agreed to make a one-time grant of up to Rs.5 lakhs per college during the Plan period. To enable these institutions to make special arrangements in the environment for their mobility and independent functioning and to ensure that all existing structures as well as future construction projects in their campuses are made disabled friendly.

(iii) Third component deals with providing special equipment to augment educational services for differently-abled persons. It recognises that differently-abled persons require special aids and appliances for their daily functioning and that the higher educational institutes may need special learning and assessment devices in this behalf. In addition, visually challenged students need Readers. Thus, colleges are encourage to procure such devices such as computers with screen reading software, low-vision aids, scanners, mobility devices etc.

14) The petitioner had filed a compilation on February 22, 2016 containing suggestions, in the form of Guidelines, insofar as making adequate infrastructure for providing proper access and also teaching facilities (Pedagogy) for differently-abled persons are concerned: 

(I) INFRASTRUCTURE

(a) University/College Campus 

Barrier-free campus environment according to the provisions of Section 45 and Section 46 of the Persons with Disability Act, 1995 and further according to 2001 guidelines issued by the Chief Commissioner for Persons with Disabilities entitled “Planning a Barrier Free Environment”. Some specific examples – where a building is of more than 2 storeys, mandatory provision for lifts. Straight and barrier-free paths, removal of obstacles such as plants, furniture or bicycles adjacent to doors, entrances, on the steps or in corridors. Unnecessary interior decoration of areas should be avoided where the same leads to impairment of the mobility of disabled persons.

(b) On Campus Accommodation 

Priority assignment of on-campus/college hostel accommodation. Rooms assigned preferably on the ground floor. Suitable room and bathroom modifications in hostel such as provision of ramps and special fittings/adjustable furniture to facilitate mobility and comfort. Availability of attendant/helper/ assistant, as required, to help the disabled student with mobility and orientation in hostel. Special on-campus transportation on as-needed basis. Where no on-campus accommodation is provided, scheme for financial assistance to the disabled student for expenses for off-campus accommodation and related requirements such as helper/attendant, transport to/from campus, etc.

(c) Classroom 

For visually impaired – Braille symbols at appropriate places in classroom buildings to assist with orientation. Auditory signals in elevators and lifts leading to classrooms. For students with low vision, adequate lighting in the classroom via natural light or adequate provision of bulbs, tube lights, etc. Provision for recording of lectures. Power plug points for visually impaired students to fit in their aids and appliances such as audio recorder, laptop, computer etc. Classroom acoustics to be designed so that all audio communication is clearly audible.

For orthopaedic impaired – Classrooms in locations accessible to wheelchair users. Ramps in classroom buildings and adaptations in toilets for wheelchair users and orthopaedic disabled persons. Seating priority in classrooms with adequate space for wheelchair users to move around. Avoidance of teaching platforms as being difficult to access for orthopaedic impaired persons.

For hearing impaired – Clear and prominent signs indicating locations of courses and classrooms to assist with orientation. Seating for the hearing impaired student as well as a note-taker, located such that lip movement of instructor and sign language interpreter can easily be seen.

(d) Science Laboratories 

Structure and layout modifications of the laboratories for safety and comfort of the visually impaired and orthopaedic impaired/wheelchair users. Use of Braille instruction sheets and tactile visual material. Availability of assistants for help with laboratory activities, particularly where some risk is involved, such as handling of chemicals. Sigh language interpreters for hearing impaired.

(e) Libraries 

For visually impaired students, Braille section and fully accessible computer systems with scanning facilities, JAWS software and Braille embossers for printing. For low vision students, large print books and computers equipped with text enlarging software. Digital libraries. Library cataloguing on computer with JAWS. Sign language interpreters as required for hearing impaired.

(f) Pedagogy (Teaching) 

For visually impaired – Course material in accessible formats such as Braille, audio books and electronic formats such as e-files in ‘daisy’ format. Availability of readers, note takers, scribes. Suitable curriculum modification and assistance esp. for scientific/pictorial/graphical material and science laboratories. Computers with screen reading software, accessible library and reference materials. Availability of tape recorders/ digital voice recorders.

For orthopaedic impaired – Note takers and scribes, as required, especially for persons with upper limb impairment. Suitable curriculum modification and assistance, especially in science laboratories.

For hearing impaired – Note takers for classroom and provision of laptop/computer for note taking. Sign language interpreters for communication support in seminars, meetings, discussions and at all university/college functions. Suitable curriculum modification and assistance for science laboratories. Sub-titling of classroom video material. Technological support for any other necessary and appropriate technology, including computer technology, to assist the hearing impaired student with learning.

(g) Examination and Testing 

Modifications Extension of time, use of reader/scribe, use of computer/laptop. Availability of question papers in accessible formats, including large print, Braille, audio, daisy format. Option of writing exams on computer with screen reading software. Modification of pictorial and graphical material for visually impaired.

(h) University/College Administration 

Scribes, helpers and sign language interpreters for disabled students in interactions with university/college administration, especially for the admission process, meetings with staff/principal, on-campus company recruitment interviews and communication with college officials such as career counsellors, student counsellors, psychologists and any other person attached to the university/college who provides services of any type to the students. Special admissions window for disabled students. Sensitivity training on disability to administrative and pedagogic staff.

(i) Sports, Culture, Recreation and Leisure Facilities 

Universities/colleges to ensure that cultural/recreational programs take into account need of students with disabilities to provide for their full participation in such programs. Some specific examples in sports: running courses/tracks to be straight where visually impaired and orthopaedic impaired students are participating. Special sporting events to be conducted such as cricket for visually impaired and special events according to para-olympic norms for orthopaedic impaired. International norms to be modified where necessary to suit the needs of the disabled students. Trainers to be sensitized towards disability and inclusion and respective societies/associations to ensure that the information about events/contests reaches the disabled students also. Similarly, cultural activities with adequate modifications to be made available. For example, disabled students to be enabled to take part in theatre, literary, dance and music activities with the help of assistants. Hearing impaired students to be provided with an interpreter for sports and cultural activities of various types.

15) Based on the aforesaid suggestions, the petitioner made written submissions on February 22, 2016, seeking following directions:

“(a) For an order directing the UGC to carry out an inspection of the 3% reservation record of respondent Nos. 11, 12 and 13 to ensure that 3% reservation for persons with disabilities are complied with, including the backlog.

(b) For an order directing the UGC to inspect all institutions of higher education to ensure that these institutions are made disabled friendly and make a report to the Central Executive Committee and the State Executive Committees who will, in turn, ensure that the institutions are made disabled friendly.

(c) For an order directing the UGC to consider the “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” submitted by the petitioner pursuant to the order of this Court dated December 09, 2010 and after making such changes as deemed fit, to issue directions to all institutions of higher education, including law colleges, for compliance within a specified period.”

16) After coming into force the Disabilities Act, 2016, further directions are sought in tune with the provisions contained in the said Act, in the following manner:

“(d) For an order directing the Central Government under Section 40 of the Disabilities Act, 2016 to frame the rules for persons with disabilities laying down the standards of accessibility for colleges, universities and other higher educational institutions, including pedagogical measures such as reasonable accommodation, modifications and aids and appliances for lectures, curricula, teaching materials, laboratories, libraries, examinations, classrooms and hostels etc. within six months from today; and for a direction to the appropriate Governments to implement the said rules within two years from the notification of the said Rules in accordance with Section 46.

(e) For an order directing the Central Government to take into consideration the Guidelines for Accessibility for Students with Disabilities in Universities/Colleges, as submitted by the petitioner, in accordance with this Court’s order dated January 20, 2011, while framing the Rules under Section 40 of the Act.

(f) For an order directing the Central Government to create an audit template in conformity with the Rules for accessibility in higher educational institutions referred to in (m) above, and for a direction to the appropriate Governments (Central and State Governments, UGC, BCI) to conduct an audit of all higher educational institutions within six months from today and to put all the audit reports on a website.

(g) For an order directing the UGC, the Central and the State Governments to invite applications from higher educational institutions for funding under the various schemes for accessibility and to release funds in accordance thereof to facilitate accessibility measures in the educational institutions.

(h) For an order directing all higher educational institutions to make their institutions accessible in accordance with the Act and the Rules within two years of the notification of the rules; and for mandatory formation in each institution of the Enabling Unit for disabled students as per UGC scheme ‘HEPSN’ to ensure monitoring and implementation of the standards and guidelines contained in the Rules.

(i) For an order directing the Central and State Advisory Boards to monitor the implementation of the Act and Rules and the orders of this Court to ensure compliance.”

17) There cannot be any dispute that the suggestions given by the petitioner, which are reproduced above, appear to be reasonable and are worthy of implementation. However, at the same time, it would be appropriate to consider the feasibility thereof particularly with regard to the manner in which these can be implemented. This task can be undertaken by the UGC. Likewise, the directions which are sought by the petitioners are in consonance with the provisions contained in the Disabilities Act, 2016. In these circumstances, we dispose of these writ petitions with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.


.............................................J. (A.K. SIKRI) 

.............................................J. (ASHOK BHUSHAN) 

NEW DELHI;

DECEMBER 15, 2017


ITEM NO.1502                   COURT NO.6                       SECTION X

(FOR JUDGMENT)

                  S U P R E M E C O U R T O F          I N D I A

                          RECORD OF PROCEEDINGS

Writ Petition(s)(Civil)      No(s).    292/2006

DISABLED RIGHT GROUP & ANR.                                 Petitioner(s)


                                      VERSUS


UNION OF INDIA & ORS.                                       Respondent(s)


([HEARD BY : HON. A.K. SIKRI AND HON. ASHOK BHUSHAN, JJ.]) WITH W.P.(C) No. 997/2013 (X) Date : 15-12-2017 These petitions were called on for pronouncement of judgment today.


For Petitioner(s)     Mr.   Baijnath Patatel, Adv.

                      Ms.   Sweta, Adv.

                      Ms.   Romila, Adv.

                      Ms.   Jyoti Mendiratta, AOR

                     Mr. Anjani Kumar Mishra, AOR

For Respondent(s)

                      Ms. Asha Gopalan Nair, AOR

                      Ms. Charu Mathur, AOR

                      Mr. G. N. Reddy, AOR

                      Mr. Ardhendumauli Kumar Prasad, AOR

                      Ms. Sushma Suri, AOR

                      Dr. Sushil Balwada, AOR

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Ashok Bhushan.

The writ petitions are disposed of with the following directions:

(i) While dealing with the issue of reservation of seats in the educational institutions, we have already given directions in para 8 above that the provisions of Section 32 of the Disabilities Act, 2016 shall be complied with by all concerned educational institutions. In addition to the directions mentioned therein, we also direct that insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.

(ii) Insofar as suggestions given by the petitioner in the form of “Guidelines for Accessibility for Students with Disabilities in Universities/Colleges” are concerned, the UGC shall consider the feasibility thereof by constituting a Committee in this behalf. In this Committee, the UGC would be free to include persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. This Committee shall undertake a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc. The Committee shall also lay down the time limits within which such suggestions could be implemented. The Expert Committee may also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee. This exercise shall be completed by June 30, 2018.

(iii) Report in this behalf, as well as the Action Taken Report, shall be submitted to this Court in July, 2018. On receipt of the report, the matter shall be placed before the Court.

Pending application(s), if any, stands disposed of accordingly.


         (Ashwani Thakur)                 (Mala Kumari Sharma)

         COURT MASTER                 COURT MASTER

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

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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: