Supreme Court of India wants an Expert Panel To Determine What Areas of Medical Practice Can Colour-blind MBBS Aspirants Study based on international best practices [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Chief Justice Dipak Misra, Justice Amitava Roy and Justice AM Khanwilkar 

Case No: Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015)

Case Title: Pranay Kumar Podder Vs. State of Tripura and Others

Date of Judgement: 23 March 2017 and Complianace Order dated  12 Sep 2017

Brief

Dear colleagues,

In a progressive order, the Hon'ble Supreme Court bench comprising Justice Dipak Misra and Justice AM Khanwilkar has directed the Medical Council of India to constitute a committee of experts to look into the areas of practice that MBBS aspirants with colour blindness could indulge in. 

The bench passed these orders while hearing a Civil Appeal No. 4394 of 2017 (arising out of S.L.P.(C) No.30772 of 2015), filed by two MBBS aspirants, who were declared ineligible for admissions at the stage of counseling in 2015, as they had partial colour blindness. 

The petitioners had challenged the decision of the committee that refused them admission because of their colour-blindness before the High Court of Tripura and  Agartala, contending that there existed no regulation framed by the Medical Council of India, under the Medical Council Act, 1956, debarring them from seeking admission. The high court had, however, refused to interfere, and had dismissed their petition. 

Before the Hon'ble SC, the petitioner's counsel contended that it was “obligatory” on the part of the Medical Council of India to take a “progressive measure so that an individual suffering from CVD may not feel like an alien to the concept of equality, which is the fon juris of our Constitution”. Amicus Curiae Mr. Viswanathan urged that a complete ban on the admission of individuals suffering from CVD to MBBS course would violate conferment of equal opportunities and fair treatment. To buttress this submission, he had made reference to provisions of the Convention on the Rights of Persons with Disabilities and Optional Protocol, to which India is a signatory. 

The Amicus Curiae Mr. Viswanathan had urged that as colour blindness is not considered as a disability under the Persons with Disabilities Act 1995 nor it is a disability under the recently notified Rights of Persons with Disabilities Act 2016, the nature and severity of colour blindness and the disciplines they can practise has to be given a re-look.

The defendants, on the other hand, had submitted that since the complete diagnosis and prognosis of a disease or disorder may depend upon colour detection, there is requirement for restriction in the field of practice of an individual with colour blindness in this country.

Considering rival submissions, the court made reference to a judgment of the Delhi High Court in the case of Dr Kunal Kumar v Union of India and others, and also to a judgment of the Rajasthan High Court in Parmesh Pachar Vs. Convener, Central Undergradutate Admission Board. While the Delhi HC had concurred with the view that people with colour blindness may not be able to pursue certain courses or disciplines, the Rajasthan HC had opined that students suffering from disabilities cannot be debarred from seeking admissions..

The apex court, however, wished neither to lean in favour of the view of Delhi High Court nor generally accept the perception of Rajasthan High Court. It, thus, directed an assessment by an independent expert committee, and observed, “Total exclusion for admission to medical courses without any stipulation in which they really can practice and render assistance would tantamount to regressive thinking. The march of science, apart from our constitutional warrant and  values, commands inclusion and not exclusion. That is the way a believer in human rights should think”.

The bench directed that the expert committee shall also  concentrate on diagnostic test for progress and review of the disorder and what are the available prosthetics aids to  assist CVD medical practitioners and what areas of practice could they undertake without difficulty with these aids. It further said the committee shall include representatives of the Medical Council of India, and experts from genetics, ophthalmology, psychiatry and medical  education, who shall be from outside the members of the Medical Council of India. It has been directed to submit a report to the court within three months. The matter has been listed for July 11.

Writing the order the court expressed, "Human being is a magnificent creation of the Creator and that magnificence should be exposed in a humane, magnanimous and all-inclusive manner so that all tend to feel that they have their deserved space. Total exclusion for admission to medical courses without any stipulation in which they really can practise and render assistance would tantamount to regressive thinking. When we conceive of global phenomenon and universal brotherhood, efforts are to be made to be within the said parameters. The march of science, apart from our constitutional warrant and values, commands inclusion and not exclusion. That is the way a believer in human rights should think.

The bench has directed the Committee of Experts to submit a report to the court within three months, andd fixed the next listing on 11 July 2017 for compliance.

See the judgement dated 23 March 2017 and  compliance Order dated 12 Sep 2017 below:

Judgement dated 23 March 2017:

 

 

Compliance Order dated 12 Sep 2017:

SC says Reservations & Relaxations for disabled - a matter of Govt. Policy; Rejects Delhi & Madras HC view on number of attempts at CSE [Judgement Included]

Dear Colleagues,

While hearing Civil Appeal No. 858 of 2017 (Arising out of SLP (C) No. 21587 of 2013), titled Union of India & Ors Vs. M. Selvakumar & Anr., a bench of Hon'ble Supreme Court comprising  Sh. Justice Ranjan Gogoi and Sh. Justice Ashok Bhushan, in its judgement dated 24 January 2017 has observed, "It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether the better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 (right to equality) of the Constitution."

The bench headed by Ranjan Gogoi set aside the judgement of the Madras High Court and the view taken by Delhi High Court that "increasing the number of attempts for Physically Handicapped candidates belonging to General Category from 4 to 7 with effect from the 2007 Examination and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC Category from 7 to 10, is discriminatory and arbitrary".

Judgement

To read the judgement in Civil Appeal No. 858 of 2017 titled Union of India & Ors Vs. M. Selvakumar & Anr  in portable document format (PDF) click here, and in Notepad format click here.

Background

It is pertinent to note that the Madras High Court in its order passed on 24.01.2012 in Writ Petition (C) No. 18705 of 2010 titled M. Selvakumar versus Central Administrative Tribunal and Others had discussed in detail clause-3 (iv) of the Notification for CSE 2008 and specifically discussed the provision which states that physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that physically handicapped candidates belonging to the general category shall be eligible for 07 attempts. The High Court had further observed that the number of attempts for the physically handicapped persons in the general category has been increased from four to seven. However, the same benefit has not been proportionally extended to the PH candidates in the OBC community. Considering this to be inconsistent with Articles 14 and 16 of the Constitution of India the petitioner M Selvakumar was given relaxation in the number of attempts as had been granted to the PH candidates belonging to general category. However, there were no specific direction of the Madras High Court to quash clause-3 of the notification nor there was any direction to the respondents to make necessary changes in the Rules for future examinations.

The SC bench said "the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped candidates belonging to the Reserved Category as well as General Category.

The verdict came on appeal filed by the Union of India challenging two judgements of the high courts which allowed Physically Handicapped students of OBC to avail 10 attempts instead of 7 attempts in the Civil Services Examination.

Both the High Court's had held that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7 with effect from 2007 Civil Services Examination, there should be proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category. 

The apex court said when the attempts for exams of Physically Handicapped candidates of OBC Category as well as those of in General Category are made equal, there is no question of discrimination as the candidate belonging to OBC Category has already been given ten years relaxation in age which give them a relaxation of three more years.

"The present case is not a case of treating unequals as equal. It is a case of extending concessions and relaxations to the physically handicapped candidates belonging to general category as well as physically handicapped belonging to OBC category. Physically handicapped category is a category in itself, a person who is physically handicapped, be it physically handicapped of a general category or OBC category, suffering from similar disability has to be treated alike in extending the relaxation and concessions," noted the bench in its judgment.

Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in the above scenario", the bench concluded.

Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C & D alike [Judgement Included]

Court: Supreme Court of India

Bench: Hon'ble Mr. Justice J. Chelameswar & Hon'ble Mr. Justice Abhay Manohar Sapre

Case Title: Rajeev Kumar Gupta and Others Versus Union of India and Others

Case No.: Writ Petition (Civil) No. 521/2008

Date of Judgement: 30 June 2016

Subject: Reservation in Promotion for Disabled to Group A and B posts; Section 33 of The Persons with Disabilities Act 1995

Brief:

Dear Colleagues,

Please refer to my earlier posts dated 02 March 15 and  10 Oct 14, on the subject. 

In a historic judgment in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others, the Hon'ble Supreme Court on 30 Jun 2016 has set aside / quashed the two below office memorandums issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.:-

•  OM No. 36035/16/91-Estt.(SCT) dated 18.02.1997  and 
•  OM No. No.36035/3/2004-Estt. (RES) dated 29.12.2005 

In the instant case the petitioners, Rajeev Kumar Gupta and seven other persons with disabilities serving as engineers in Prasar Bharti made the grievance that the higher level posts in the engineering cadre were filled mostly by promotion. Although these posts were suitable for persons with disabilities, the Government was denying them 3% reservation in these posts, which amounted to defeating the intent and purpose of reservation provided for in the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995. At the heart of the problem were the DoPT instructions dated 18.2.97 and 29.12.2005, which prohibited reservation in promotion for disabled persons in Group A and B posts. 

Petitioners had argued that a large number of Groups A and B were filled only through promotion and because of the impugned DoPT memorandums, the benefit of reservation under Section 33 of the 1995 Act was denied with respect to those posts. Petitioners therefore lost out on a significant amount of opportunities at the upper end of the organizational hierarchy.

The government opposed concession to the disabled, contending that they have no right to demand reservation in promotion to identified Group A and Group B posts. It also cited the nine-judge bench ruling by the apex court in the Indra Sawhney (Mandal reservation) case, to maintain reservation should be confined to recruitment at the initial level, and not at the stage of promotions.

It may be pertinent to mention that in the Indra Sawhney case while dealing with caste based reservation issue, the Bench had held "Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."

But the bench dismissed the government’s arguments, noting that once the posts for the disabled have been identified under Section 32 of the Act, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation.

“It would be a device to defraud persons with disabilities of the statutory benefit. Once a post is identified, it means that a person with disability is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than 3 per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post,” it held.

The bench further said that Indra Sawhney’s case shall not impose a bar on reservation for the disabled, since the principle laid down in this case is applicable only when the State seeks to give preferential treatment in the matter of employment to the backward class.

“The basis for providing reservation for persons with disabilities is physical disability and not any of the criteria forbidden under Article 16(1) such as caste, religion etc. The objective behind the 1995 Act is to integrate those living with disabilities into the society and to ensure their economic progress… persons with disabilities are not and cannot be equated with backward classes contemplated under Article 16(4),” it said. Article 16 of the Constitution empowers the state to prescribe preferential treatment to certain classes in matters of public employment.

The judgement is historic and a major milestone in the fight for restoring the rights of persons with disabilities in India. 

The argument in this case were concluded on 17.03.2016  and the bench had reserved the judgement.

The case, represents success in a hard fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher level posts was made difficult because of their physical disadvantage. 

Brief Background of related matters

It may be pertinent to mention that the Hon'ble Supreme Court  had on 08 Oct 2013 in the case titled Union of India vs. National Federation of the Blind delivered a land mark judgment directing the Govt, of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act, provided for reservation in promotion for persons with disabilities in Groups A and B also.

But instead of implementing the judgement, the Govt. of India had been contesting the issue through various frivolous litigation which were nipped in the bud each time by the Hon'ble Court. 

Judgement Copy 

Download the Judgement dated 30 June 2016 in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others (PDF 326BKB) or read the judgement below:

Updates as on 04 Sep 2017 

The issue of whether persons with disabilities deserve reservation in promotions as well, apart from the reservation that exists in appointment, has been escalated by the Supreme Court to a five-judge bench since it requires interpretation by the Constitution bench.

On Monday (September 4, 2017) the bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud heard deposition by Solicitor General Ranjit Kumar and counsels  requested a larger bench to hear the issue. The three judge bench headed by the Hon'ble Chief Justice Dipak Misra agreed to refer the matter to a five-judge bench.

The question that has arisen in this case is whether persons, governed under “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”, can be given reservation in promotion. A view had been taken by this Court in Rajeev Kumar Gupta & Others vs Union of India & Others in the affirmative. The Solicitor General had pointed out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney vs Union of India and Others – (1992) case applies not only to Article 16(4) but also to 16 (1) of the Constitution of India and inference to the contrary is not justified. Persons with disabilities certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion. Section 33 of the 1995 Act is required to be read and construed in that background. “We find merit in the contention that the matter needs to be considered by the larger bench,” he said.

Frame Policy for Compensation to Disabled Rape Survivor - SC [Judgement Included]

Dear Colleagues,

A two Judge Bench of the Supreme Court comprising of Justices MY Eqbal and Arun Mishra, while hearing a Criminal Appeal 884/2015 filed by the accused challenging his conviction and sentence of 7 Yrs rigorous imprisonment (RI) u/s 376 IPC,  has directed all the State Governments to formulate Uniform Schemes for the Victims of Sexual Assaults. 

The rape survivor  in the case is a blind and illiterate girl, who was subjected to sexual intercourse on the promise of marriage by the accused. After upholding the Conviction and Sentence on the Accused, the Court examined the question as to ‘whether in the facts and circumstances of the case the prosecutrix is entitled to victim compensation and, if so, to what extent?’ 

In addition to the the Victim Compensation Scheme of Chhattisgarh state, the the hon'ble Court also examined the Schemes notified by other State as well. After examining the schemes, the Court held, "Perusal of the aforesaid victim compensation schemes of different States and the Union Territories, it is clear that no uniform practice is being followed in providing compensation to the rape victim for the offence and for her rehabilitation. This practice of giving different amount ranging from Rs.20,000/- to Rs.10,00,000/- as compensation for the offence of rape under section 357A needs to be introspected by all the States and the Union Territories. They should consider and formulate a uniform scheme specially for the rape victims in the light of the scheme framed in the State of Goa which has decided to give compensation up to Rs.10,00,000/-"

The Court observed, “While going through different schemes for relief and rehabilitation of victims of rape, we have also come across one Scheme made by the National Commission of Women (NCW) on the direction of this court in Delhi Domestic Working Women’s Forum vs. Union of India and Ors. [Writ Petition (Crl) No. 362/93], whereby this Court inter alia had directed the National Commission for Women to evolve a “scheme” so as to wipe out the tears of unfortunate victims of rape. This scheme has been revised by the NCW on 15th April 2010. The application under this scheme will be in addition to any application that may be made under Section 357, 357A of the Code of Criminal Procedure as provided in paragraph 22 of the Scheme. Under this scheme maximum of Rs.3,00,000/- (Three lakhs) can be given to the victim of the rape for relief and rehabilitation in special cases like the present case where the offence is against an handicapped woman who required specialized treatment and care” 

The Court passed the following directions :-

1) All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation; 

2) So far as this case is concerned, the respondent-State shall pay a sum of Rs.8,000/- per month as victim compensation to the victim who is physically handicapped, i.e. blind, till her life time.

To read the judgement click here: 

• Judgement in PDF Copy
• Judgement in Note Pad

Related News coverage

(a) Times of India - SC directs govt to frame policy for compensation to disable rape victim

(b) Deccan Herald - Pay rape Victim, SC tells states

SC directs States & UTs to consider Acid Attack Survivors in Disability List [Judgement Included]

Dear Friends,

On Monday i.e. 07th December 2015, the Hon'ble Supreme Court of India, while hearing WP(C) No. 867/2013 titled Parivartan Kendra Versus Union of India and Others,  directed all states to treat "Acid Survivors" as disabled persons and extend job reservation and social welfare schemes. While it's good thought to extend the benefits of this benevolent legislation to mainstream and empower acid survivors, will there be corresponding increase in the %age of reservation? Which disability group would give up their share ? 

A bench of Justices M Y Eqbal and C Nagappan said that steps must be taken to bring such victims to the national mainstream and putting them in the category of disabled person would be a step in that direction. The victims can claim benefits under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act if they are brought in the disability list.

The central law- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 provides for reservation in jobs etc to the tune of 3% where 1% each is reserved for Visually Impaired (both low vision and Blind), Orthopedic Disabilities (including cerebral palsy) and Hearing Impaired. There are several other categories defined in the definition of a person with disability in the Act viz. Leprosy Cured, Mental Illness, Mental Retardation etc. but the reservation is not extended to any other categories except the above three. The judgement is silent on the process of granting such reservation as the law currently has no such provision. The direction in the last para is :

"Disposing of the present writ petition, we additionally direct all the States and Union Territories to consider the plight of such victims and take appropriate steps with regard to inclusion of their names under the disability list."

Let us see how the States and UTs respond to this direction coming from none other than top court of the country. But one thing is certain, in today's scenario, no disability group would be willing to let go their share!

Judgement

The Supreme Court judgement can be accessed here at link: Writ Petition Civil No. 867 of 2013 titled Parivartan Kendra Versus Union of India and Others

Here is a media coverage from Times of India: 

Related News
Times of India-  Bring Acid Attack survivors within disable person list:- SC to Govt.

Supreme Court on filling up of backlog Disability quota (in promotion?)

A unique example of how selected media reporting can create grapevines.  I have learnt that the proceedings in the court were completely different from what has been reported here by the TNN.

The Hon'ble Supreme Court was actually hearing a contempt petition filed by the National Federation of the Blind against the Central Govt for complying with the court's October 8, 2013, regarding filling up of 15000 vacant posts. SC dismissed the plea saying that implementation is under way and accepted Center's response that it will be completed by 31st March 2016.

In this context, While disposing of the plea, SC clarified that since the Govt. of India has committed itself to fill up the entire backlog of vacancies numbering about over 15,000 by way of a special recruitment drive in terms of office memorandum dt. 22.5.15, the contempt proceedings will not be initiated. 

The court said the question of reservation in promotion was not there for adjudication since its October 2013 judgment was only in respect of filling up the vacancies reserved for physically disabled people at the entry point, and could not be read into promotion. The story made out thus is unnecessary reading between the lines.

The bench of Justices Ranjan Gogoi and N V Ramana said this while giving clarification on its October 2013 judgment by which the court had held that the 3 percent reservation for physically challenged people would depend on the total number of vacancies in the cadre strength.

The court said its order has to read in the context of two questions it had framed and addressed in its October 8 judgment. And these two questions were:

(a) First was about the manner of computing 3 percent reservation for people with disabilities as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act.

(b) The second question that the court had answered in the October 8 judgment was whether the reservation should be post-based or vacancy-based.

I feel the Hon'ble Bench  thus did not sit to review or clarify its earlier order on the issue of reservation in promotion for persons with disabilities. In fact after the said judgement of October 08, 2013,  the Hon'ble SC upheld the orders of Bombay High court, High court of Delhi and High court of Allahabad laying down that Section 33 includes reservation in promotion as well by way of various judgments particularly judgments dt. 10.12.13 in Civil Appeal No. 9473/2011 titled as Municipal Corporation of Delhi Vs. Manoj Gupta, judgment dt. 12.9.14 in C.C. No.13344/2014 and judgment dt. 27.2.15 in civil Appeal No.5914/2015 titled as Union of India Vs. National Confederation for Development of Disabled and Ors and judgment dt. 20.3.15 in Civil Appeal No.4641/2015 titled as State of U.P. Ors. Vs. Sanjeev Kumar Jain and Ors. dismissing the civil Appeals/ SLPs both of Govt. of India as well as respective State Govts.

Therefore, it is to be clearly understood that if  SC /ST are given the quota in direct recruitment as well as in promotion, the disabled category should not be left out from this benefit under the benevolent legislation whose mandate is equal opportunities, protection of rights and full participation of those living with disabilities.  The govt should bring out appropriate revised DoPT memo to implement this long pending issue of reservation in promotion for government employees with disabilities.

Here is the TNN reported version that sought to create confusion among the stakeholders :

SC: Differently abled can’t claim quota in promotion

Amit Anand Choudhary,TNN | Sep 2, 2015, 05.36 AM IST

NEW DELHI: Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict.

A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.

The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.

The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.

Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government. Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.

Source: Times of India 

SC directs TN govt to keep a Judge slot for visually impaired candidate

Keep judge slot for 70% blind lawyer, SC tells Tamil Nadu govt

A Subramani, TNN | Jul 18, 2015, 05.54PM IST

CHENNAI: A CBI prosecutor suffering 70% blindness is close to realizing his dream of becoming a judicial magistrate, as the Supreme Court has directed Tamil Nadu government to keep one post of civil judge vacant for him.

An interim order to this effect was passed by a bench of Justice V Gopala Gowda and Justice S A Bobde on July 10.

Though V Surendra Mohan, 29, of Thiruvotriyur in Chennai got through written examination his name was not shortlisted for viva voce. He filed a writ petition for inclusion in the interview list. As an interim order, the court allowed him to take part in the interview and the result was kept in a sealed envelope. When it was opened after a later order, it was revealed that Surendra Mohan had secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce. To a court query, Tamil Nadu Public Service Commission said he was well within the zone of consideration and appointment for a civil judge post.

However, he was not considered for appointment since he suffered more than 50% visual disability, whereas a proposed amendment to rules limited the disability between 40% and 50% for eligible candidates.

On June 5, the high court upheld his exclusion saying, "Taking into account the nature of duties to be performed by the civil judge, the government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40% to 50%."

Surendra Mohan took the case to the Supreme Court saying the high court "wholly erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."

The judgment proceeds to reject the petitioner's claim without either an executive order or an amendment coming into force, he said, adding, "without the law having been changed, there was no basis for the judgment at all."

Reiterating that there is no way he could be excluded from the selection process, he said a GO dated April 11, 2005 clearly notified that PB (partially blind) persons are eligible for civil judge post. "The petitioner, who has 70% partial blindness, cannot in any way be excluded from the recruitment, he said, adding that the high court judgment overlooked the overwhelming discrimination in the system against the disabled, and in an egregious step it excludes the only fully eligible blind man."

Source: Times of India

Visually Impaired Public Prosecutor denied Magistrate post despite clearing Test, approaches SC

Please refer to my earlier post  titled "Committee of Judges decide a VH can not be a Judge in Tamil Nadu" dated 08 June 2015. The said candidate who is already working as a public prosecutor and denied elevation as a magistrate on flimsy grounds of disability, has finally approached the Supreme Court of India. The issue has been covered by Times of India succinctly below:

A 70% blind person rejected for magistrate post despite being selected approach SC
A Subramani,TNN | Jul 6, 2015, 01.06 AM IST

CHENNAI: Perhaps emboldened by the success of significant number of differently-abled people cracking the civil services examination on Saturday, and the case of Beno, the first 100% visually disabled person to be absorbed in IFS, a 70% blind person rejected for magistrate post despite being selected, is now knocking at the Supreme Court doors.

V Surendra Mohan of Tiruvottriyu, who is an assistant public prosecutor of the CBI at present, cracked magistrate selection test, but was denied appointment by the Tamil Nadu Public Service Commission saying persons with more than 40% visual disability, could not be considered for magistrate's post. When challenged, Madras high court on June 5 upheld the rejection saying: "Taking into account the nature of duties to be performed by a civil judge, government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40 per cent to 50 per cent."

The 'proposed amendment', does not deprive the benefit of reservation, but only restricts it to those whose percentage of disability is below 50%,' the high court reasoned.

Questioning the conclusion, Surendra Mohan filed a special leave petition in the Supreme Court framing a volley of question of law. He said the high court had erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Wondering whether the high court could proceed on the basis of a "proposed amendment" while ignoring the law as it stood, the SLP says when there is no other blind candidate available for any of the posts sanctioned, is it legal or equitable at all for the authorities to have relied on an internal correspondence between the government and the high court to ensure that no blind individual was accommodated.

Noting that with 70% blindness, he has been discharging his duties as an assistant public prosecutor, he said there is no legal basis for excluding him from the civil judge post. In a series of recruitment drives over the years, the posts reserved for the blind have gone abegging, Surendra Mohan said, adding: "This year as well, as a result of the illegal action of the authorities, no blind candidate has been recruited, reflecting a complete apathy on their part in discharging obligations placed on them by the Constitution and the laws."

According to an April 11, 2005 government order, for civil judge posts PB (partially blind) persons are eligible, the SLP said. A GO dated August 31, 2012 excludes only those with "complete blindness", and hence with 70% partial blindness he cannot in any way be excluded from the recruitment, Surendra Mohan has said.

Source: Times of India

Transgender is not merely a social or medical issue but a Human Rights issue - Supreme Court

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community (TGs hereafter) undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

The issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach towards transgenders which may focus on functioning as an interaction between a person and their environment highlighting the role of society and changing the stigma attached to them. TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability. Up till recently they were subjected to cruelty, pity or charity. Fortunately, there is a paradigm shift in thinking from the aforesaid approach to a rights based approach. Though, this may be the thinking of human rights activist, the society has not kept pace with this shift. There appears to be limited public knowledge and understanding of same-sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex. As a result of this approach, such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.

The petitioners in this case titled "National Legal Services Authority versus Union of India and others … WP(C) No.400 of 2012 sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

Siding with the petitioner, the court said, "There seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

The bench clarified that the rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to life in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual.” This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.

The bench further said that by recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the TGs which legitimately belongs to them.

The court thus declared as under:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by  ijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities. 

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life. 

To access the detailed court judgement click on the link below:

Judgement dated 14 April 2014 in WP(C) No.400 of 2012 titled National Legal Services Authority versus Union of India and others … 

Related Media Coverage:

Times of India : Supreme Court recognises transgenders as "third gender"

The Guardian:   India recognises transgender people as third gender

BBC News:   India court recognises transgender people as third gender

Welfare Trust Fund for Disabled swells to 223 crore; remains unutilized

The documents submitted in Supreme Court show that the trust has so far has utilised only Rs 18.59 crore towards extending benefits to physically disabled.

Fund for disabled set up 10 years ago lies unused

Written by Utkarsh Anand | New Delhi | March 3, 2014 11:49 pm

A fund created on the order of the Supreme Court for welfare of the disabled has swollen to Rs 223 crore, but not even 10 per cent of it has been utilised in almost a decade now.

The only plan in place, a scholarship scheme for disabled students, is yet to be introduced in any of the union territories or Northeastern states.

In 2004, the court had ordered that the Comptroller and Auditor General set up a trust with the money recovered by it from banks as illegal collection from borrowers. The money, the court said, would be used for the benefit of disabled. The trust was to be managed by the CAG as its chairman, with the finance secretary and law secretary as ex-officio members.

The RBI recently wrote to the under secretary, Ministry of Finance, that Rs 173 crore in all had been deposited in the fund. While 46 commercial banks had deposited Rs 154 crore towards excess interest charged to borrowers, Rs 19.5 crore had been deposited as part of the additional Rs 50 lakh each the banks gave in accordance with the Supreme Court order.

This money, Additional Solicitor General Rakesh Khanna informed a Supreme Court bench led by Justice K S Radhakrishnan recently, has grown to Rs 223 crore along with interest.

However, as the documents submitted in court showed, the trust has so far utilised a meagre Rs 18.59 crore towards according benefits to the physically challenged. Only money allotted for a scholarship scheme has been entirely used, benefiting 1,500 students per year. The number of scholarships has now been raised to 2,000 students per year.

Documents also revealed that no union territory or Northeastern state barring Assam had benefited from the scholarship scheme, which has more male recipients than female.

At a hearing earlier, ASG Khanna had told the court about the recovery of the amount so far and sought some additional orders on issues like merger of banks, or closure of banking operations by some entities, mode of recovery from state finance corporations etc.

The bench, which was hearing a petition filed by Ravi Shankar Bhushan, a disabled person working in an NGO, said it would pass appropriate orders with assistance from the petitioner’s counsel Colin Gonsalves.

Source: Indian Express

Failure to implement Disabilities Act makes Madras High Court initiates Contempt Proceedings against Chief Secretary

Hi,

Here is a news coming from Madras High Court. Though the notices of the contempt have been delayed at the request of Advocate General but it indicates the seriousness with which the Court is looking at the continued defiance.

Times of India and The Hindu have covered the stories as below. More soon....

Times of India

Madras high court initiates contempt proceedings against Tamil Nadu chief secretary Sheela Balakrishnan

A Subramani,TNN | Feb 11, 2014, 01.06 PM IST

CHENNAI: Lambasting top bureaucrats of Tamil Nadu for their failure to furnish data relating to backlog of vacancies for disabled persons in various government departments, the Madras high court has initiated contempt of court proceedings against chief secretary Sheela Balakrishnan and two other officers.

According to the statute, there shall be reservation of 3% of all available vacancies for disabled persons. While the court had passed necessary orders nearly two years ago, the issue gained importance after last month's Supreme Court ruling directing all state governments to set apart 3% of all available vacancies for disabled persons.

Justice S Manikumar, pointing out that at least 23 government departments have not furnished required details of backlog vacancies despite several adjournments and directives, said: "Though repeatedly, this court has issued orders to identify the posts in 'A', 'B', 'C' and 'D' categories and consequently, to fill up the posts as expeditiously as possible, the process is on and on and from the materials produced before this court, out of 34 secretarial heads, 140 Heads of Departments, 102 government undertakings, including universities and 54 companies owned and controlled by the government, only 70 HoDs have furnished the details of 'A', 'B', 'C' and 'D' categories."

"So far, 50 out of 102 government undertakings and boards, etc., have furnished the details. No clear details have been furnished by about the 54 companies owned and controlled by the government," Justice Manikumar said.

He then said: "This court is constrained to issue contempt notices to Sheela Balakrishnan, chief secretary of Tamil Nadu and head of Monitoring Committee for Differently Abled, P Sivasankaran, secretary of Welfare of Differently Abled department and Manivasan, commissioner for the differently abled, to explain as to why further course of action should not be taken under the Contempt of Courts Act. Registry is directed to issue necessary statutory notices to the above said persons."

However, after advocate-general A L Somayaji requested the court to postpone the issuance of the statutory notice, which would require the personal appearance of the officers concerned, the judge said the officers could make necessary applications if they complied with directions of the high court and the Supreme Court.

The Hindu

HC pulls up State for violations in appointing differently-abled persons

CHENNAI, February 12, 2014

K.T. SANGAMESWARAN

Observing that the differently-abled have been taken for a ride by the State government, the Madras High Court has ordered issue of contempt notices to three top officials, including the Chief Secretary, for violating the orders of the High Court and the Supreme Court in the matter of filling up vacancies in ‘A’, ‘B’, ‘C’ and ‘D’ categories by differently-abled persons.

Besides the Chief Secretary, Sheela Balakrishnan, notices were ordered to be issued against the Secretary, Welfare of Differently-Abled Persons Department, P.Sivasankaran and the State Commissioner for the Differently-Abled, Manivasan.

Following the Advocate-General, A.L.Somayaji’s request to postpone the issue of the notice, Justice S.Manikumar ordered that if the officials concerned comply with the Court directions in letter and spirit, they could file necessary applications.

Passing an interim order on three writ petitions filed in 2004, the Judge said the Court had, in April 2012, directed the authorities to identify ‘A’ and ‘B’ posts in government departments, boards, public sector undertakings, corporations, companies owned by the government and educational institutions. Subsequently, the government had issued a G.O. on January 29 last year directing the establishments to identify the posts and to implement the three per cent reservation for the differently-abled.

Mr. Justice Manikumar said no details had been furnished, as to whether the Secretaries had implemented the instructions given.

Though repeatedly the Court issued orders to identify the posts under the four categories and fill up the posts as expeditiously as possible, the process was getting delayed.

Only 50 out of the 102 government undertakings, boards, etc., had furnished the details. No clear details had been furnished about 54 government-owned companies. He said the authorities were seeking adjournments time and again.

During the last hearing, the State Commissioner for the Differently-Abled filed an affidavit taking a different stand altogether and submitted that the whole process should be reworked considering the Tamil Nadu Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules.

Denying the disabled

Indian courts have shown that they are ready for progressive interpretations of the law on the rights of persons with disabilities. Therefore, any new law that aims to replace the Persons with Disabilities Act, 1995, needs to be a significant improvement on it. By JAYNA KOTHARI

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment. For any marginalised group, including persons with disabilities, equality in employment is a benchmark for full participation in society.

In Union of India vs National Federation for the Blind and Others, the Supreme Court passed on October 8 a landmark judgment in this battle on reservation of jobs for persons with disabilities. The PWD Act, though a restricted statute mainly concerned with providing reservation in jobs and seats in public employment and education, has slowly been nudged by courts, lawyers and disability rights activists to become far more progressive than was ever imagined. Section 33 of the Act states that “every appropriate government shall appoint in every establishment such percentage of vacancies not less than 3 per cent for persons or class of persons with disability...”. Section 32 requires the appropriate government to identify jobs for persons with disability and review the list of identified jobs every three years.

In spite of Section 32, the reality on the ground since 1996 has been that hardly any jobs were identified by the governments as suitable for persons with disabilities. A 2009 World Bank report, titled “People with Disabilities in India: From Commitment to Outcomes”, found that only 10.2 per cent of the posts in all Ministries/departments and public establishments had been identified as suitable for persons with disabilities. The situation in 2013 is not very different. In a 2010 judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr, the Supreme Court held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities.

In the National Federation for the Blind case, the core question was whether the 3 per cent reservation should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts. Cadre strength refers to the total number of posts in the cadre. At present, if at all reservation for and appointment of persons with disabilities are made, it is only on the basis of the vacancies that arise in “identified” jobs, which are far fewer than the total number of posts in the cadre. The Supreme Court held that from a bare reading of Section 33 it was clear that the intention of the legislature was that the 3 per cent reservation was computed on the basis of total vacancies in the cadre strength. This interpretation is significant as it will lead to an unprecedented increase in the number of appointments in State and Central government jobs for persons with disabilities.

One of the most interesting observations of the court in this judgment pertains to reservation in the private sector. Section 41 of the Act states that incentives should be given to public and private establishments so that they provide 5 per cent reservation for persons with disabilities. The Supreme Court held that “on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector”.

This expansive observation of the court has gone unnoticed amid the excitement over its statement on reservation based on the cadre strength. This opens up new avenues for implementing reservation for persons with disabilities in the private sector as well. This opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which stated that the definition of “establishments” under the PWD Act did not include private companies. Now, however, the full Bench of Justice P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by observing that the intention of the legislature was to ensure reservation of posts for persons with disabilities not only in the public sector but in the private sector as well.

Draft Bill, 2012 

This judgment comes at the right time as the Draft Rights of Persons with Disabilities Bill, 2012, is pending consideration. The Supreme Court even relied on the Bill for its reasoning. However, with regard to equality in employment rights for persons with disabilities, the Bill does little to improve upon the provisions of the PWD Act and does not include the exciting new possibilities that the Supreme Court judgment promises. It does not mandate reservation of jobs in the private sector at all for persons with disabilities although this was clearly included in the draft of 2011. Unless the private sector is mandated to reserve jobs for persons with disabilities, it is unlikely that their conditions of employment in the country will change significantly. If one were to review any significant disability rights legislation in other jurisdictions, one would notice that all of them contain employment obligations for the private sector as well.

This has become even more urgent now as India has ratified the United Nations Convention on the Rights of Persons with Disabilities. Perhaps, the Supreme Court decision will prompt a revision of the relevant provisions in the Draft Bill. The Draft Bill also needs to address the problematic requirement of “identification of jobs”, which has been reproduced from the PWD Act. Identification of jobs is a concept that is considered outdated by disability rights activists the world over because it has a history of segregating persons with disabilities into the most menial jobs available, making it difficult for them to apply for other jobs. In the last century, the strategy of identifying particular professions for persons with disabilities was practised in the United Kingdom. But, as Anna Lawson, professor at Leeds University and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing, 2008), points out, the occupations that were selected were of low status such as car park attendants and lift operators. In associating disabled people with such jobs, there is the danger of creating or reinforcing negative stereotypes about them and their abilities.

For example, in India, the stereotypical jobs reserved for the blind and persons with low vision are those of music teacher and telephone operator. These difficulties were recognised in the U.K. as early as 1956 by the Piercy Committee in its report of the Committee on the Rehabilitation, Training and Resettlement of Disabled Persons, and although initially the disabled community supported the strategy of identifying certain jobs for its members, such schemes were finally abolished.

In India, the battle for reservation of jobs has often been stalled by the government’s not identifying posts as suitable for persons with disabilities. Such identification is often restrictive and arbitrary; for example, in Group A, the job of an agricultural scientist specialised in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability but not for someone with a hearing disability. There is also a great variance between the Central government and different State governments on what posts are suitable for persons with disabilities, and this has led to intense litigation.

As the World Bank report says, the list of identified jobs is based on the assumption that the characteristics of impairment are the exclusive determinants of an individual’s ability to hold a position at a particular skill level and such identification ignores the potential influences of individual characteristics (motivation, age at disability onset), the person’s access to employment services, and the characteristics of the workplace and labour market. Even though there is a statutory obligation to identify posts, what posts are identified is left to the discretion of the government, which decides on the basis of the nature of the posts and its requirement. The government often conveniently denies people with disabilities jobs by not identifying enough posts in each department for them. Thus, the whole concept of identification of posts is problematic. The Supreme Court recognised this in its recent judgment, saying: “[E]xperience has shown that identification has never been uniform between the Centre and States and even between the departments of any government. For example, while a post of middle schoolteacher has been notified as identified as suitable for the blind and low vision by the Central government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc.”

Reasonable accommodation 

Unfortunately, the requirement of identification of jobs is retained in the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced, with the only difference being an increase in the reservation from 3 per cent to 5 per cent. If this requirement is removed from the Bill, this, coupled with the obligation the Bill places on the employer to provide “reasonable accommodation”, every job could potentially be suitable for persons with disabilities. The concept of reasonable accommodation, or adjustment, lies at the heart of civil rights advancement in the context of disability. Its significance is that it is a way of accommodating difference. A 2004 baseline study by the European Union Network of Independent Experts of Disability Discrimination, titled “Disability Discrimination Law in the E.U. Member States”, noted: “The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case.”

Essentially, the concept stems from a realisation that the achievement of equal treatment can only become a reality when some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. In employment, it is the duty of the employer to make reasonable accommodations to any physical features of the premises or to the duties of the job which would place disabled persons at a substantial disadvantage in comparison with those who are not disabled. As stated in the E.U. report, reasonable accommodation as provided in other legislations could include adjustments to premises; reallocation of duties; redeployment to an existing vacancy; alteration of working hours; reassignment to a different place of work; allowing absence for rehabilitation; assessment or treatment; training; acquisition of equipment; modification of equipment, instructions, reference manuals and testing or assessment procedures; and provision of a reader, interpreter or supervision. Thus, the need to identify jobs would not arise at all as every job could be done by a person with a disability. With India ratifying the U.N. Disabilities Convention, the concept of reasonable accommodation has not only been brought under the Draft Bill, but also recognised by the Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.

Finally, only token improvements to the PWD Act have been made in the Bill. Instead of the seven disabilities stated in the PWD Act, the Bill provides for 5 per cent reservation of jobs for persons with “benchmark disabilities”, which means those found with 40 per cent or more of the specified 18 disabilities. However, the provisions for reservation of jobs only mentions that out of the 5 per cent of jobs, with 1 per cent each being reserved for persons with blindness and low vision, hearing impairment, locomotor disability, autism and intellectual disability, and mental illness. These provisions do not adhere to the progressive social model of disability, which does not view disability as a medical impairment (with 40 per cent or more of a certain characteristics) but as a form of discrimination due to social and environmental barriers. If these medical models of understanding disability are reproduced in the new law, one can hardly say that the Bill is in conformity with the U.N. convention, which was supposed to be the basis for the whole drafting exercise.

The Supreme Court decision signals that Indian courts are ready for progressive interpretations of the law on the rights of persons with disabilities. These interpretations have breathed life into the PWD Act and transformed it from a limiting statute into a legislation that has been successful in changing the lives of persons with disabilities, at least in the field of public employment. This judgment bears in it the seeds for further reform. This requires a serious reconsideration of the Draft Bill, which needs to take all these concerns into account. The disability rights movement has worked hard for the last 17 years to make the PWD Act what it is today, and any new legislation that replaces it needs to make a significant improvement to it.

Jayna Kothari is an advocate practising in the Karnataka High Court and a director of the Centre for Law and Policy Research. She is the author of The Future of Disability Law in India and can be contacted at jayna.kothari@clpr.org.in

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