Showing posts with label disability discrimination. Show all posts
Showing posts with label disability discrimination. Show all posts

Friday, October 10, 2014

Chief Commissioner Disabilities directs UPSC to withdraw discriminatory performa

UPSC asked to withdraw ‘discriminatory proforma’

The Court of Chief Commissioner for Persons with Disability has directed the Union Public Service Commission (UPSC) to withdraw its “discriminatory performa”. It has directed the UPSC to refrain from asking persons with disabilities to submit photographs showing their disabilities and to consider the ‘permanent disability certificate’ issued from a government hospital as a valid proof.

The action comes following an intervention by Dr. Satendra Singh, who has been working in the area of disability rights and had written to the UPSC against “its discriminatory policies”.

“Despite having a valid disability certificate, the UPSC asks all applicants to use their own format for disability certificate. This is against the existing guidelines but nobody challenged the UPSC. Moreover, the format asks applicants to paste ‘photo showing disability’, which is not only discriminatory but also infringement of right to privacy. An example – how can an amputee female attach her photograph?’’ asked Dr. Singh.

He added that in a follow-up to his complaint, he also quoted the Amended Persons with Disabilities Rules 2009, which were circulated to all the Ministries/Departments (Rules 3 to 6 of Chapter II relating to Disability Certificate as per Ministry of Social Justice and Empowerment’s notification in November 2013.

“The amended rules show the format to be used for disability certificate and none of them asks ‘to showcase disability’,” said the physician.

He further pointed out that Rule 6 of the same order clearly states that a certificate issued under Rule 4 is to be generally valid for all purpose. “When a person already has a valid government certificate of permanent disability why does he have to get his disability certificate again in the prescribed form of the UPSC?’’ questioned Dr. Singh.

Source: The Hindu


Tuesday, December 10, 2013

Physically Challenged Versus Logically Challenged

Dear Colleagues,

There is an inherent bias in the executive when it comes to giving equal opportunities to those living with disabilities in employment despite the tall claims on paper by the Government and harshest judgements from the Courts criticizing the executive and the government. Now whether it is born out of age old mis-beliefs, myths and resultant negative attitudes towards the disabled or an utter lack of awareness about the possibilities and potential of those living with disabilities - the result is insurmountable barriers for disabled people on every step of their lives.

A committee of High Court Judges decides that those with vision impairments and those with hearing and speech impairment can not function as Judges (Blind/deaf can't be judges, say govt and HC; PIL questions it, the Babus decide what a person with disabilities is capable of, without even knowing a, b, c of disability! And these decisions are taken in solo without involving those with disabilities or their organisations. 

We recently saw certain candidates with disabilities who passed the UPSC's Civil Services Examination way back in 2007 -08 continue to await allocation of posts! The principles of natural justice particularly in a democratic set up as ours, demand that an opportunity of being heard be given to those affected by the proposed action. This is amazing way of functioning displayed by the Indian bureaucracy where the bureaucrats and not the law decides whom they want to allow in their gang!

Section 32 and the List of Identified Jobs


The List of Identified Jobs for persons with disabilities which had been prepared by the Babus with some experts from field also on the panel has done more harm than good for persons with disabilities of this country.  The list has been used to deserving people out by State governments from several key posts. The successive committees of babus have not allowed the stakeholders to even know what was added or removed in the successive list of jobs published through gazettes. Each time a list of published, the earlier was removed from the website, without even explaining what new post(s) have been added or deleted from the list and the basis for the same! And this business of identified jobs has been in business since 1989 even before the disabilities Act came in to force.

The list doesn't seem to have applicability in all the states and union territories since so many states (read babus) have published their own selective lists of posts (read... unimportant posts) jobs, keeping the posts to the minimum that could be held by  persons with disabilities. Certain states and Ministries have been on an exemption seeking spree under the proviso of Section 33 of the Disabilities Act. For instance the post of Judge has been identified in the Central List whereas states like West Bengal, Kerala, Tamil Nadu and Uttar Pradesh seems to have taken regressive steps by obtaining exemptions of judicial posts from the purview of section 33 (reservation in favour of persons with disabilities particularly against the candidates with visual and hearing and speech disabilities.)  

3% reservation in promotion under Section 33 

Similarly, by twisting the interpretation of section 33, the Babus have for long denied the 3% reservation in promotional posts to employees with disabilities particularly in group A and B posts citing various untenable reasons.  


Now the Bombay High Court has dealt with the issue in a PIL filed by an NGO - National Confederation for Development of Disabled. The petition pointed out that the ratio of percentage of direct IAS to IAS by promotion or election was 67% : 33% in Maharashtra state at present. Thus effectively, out of 100 new posts, 67 were being filled by people who have been directly recruited in the IAS category and 33 posts were filled by state civil service officers.  Thus the reservation in 33% promotional posts was being denied to the disabled officers from State Civil Services (for the impugned executive orders provide for no reservation in promotion in Group A and B posts!).

In a remarkable judgement the Division Bench of Chief Justice Mohit Shah and Justice M S Sanklecha has on 04 December 2013, directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota i.e.  now reservation would be applicable on all the 100 posts.   
The court held that it is clear  that  reservation has  to  be computed with  reference to  total  number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion.  Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. 

Download a copy of the Judgement

Bombay High Court judgement in PIL No. 106 of 2010  titled National Confederation for Development of Disabled and another versus Union of India and ors. or read the embedded PDF Judgement below:






Manner of computation of reservation under Section 33


The manner of arriving at or computing 3% reservation in various posts has not been spelled out in the Act. and thus in exercise of the powers conferred by sub-sections (1) and (2) of Section 73 of the Act, the government (read babus) used their discretion to spell it out through executive orders (read DoPT Memos) thereby restricting the reservation benefits to the minimum particularly in Gp A and B posts.  

For Eg. Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities, wherein the 3% reservation for the disabled persons was being computed by taking into account the total number of vacancies arising in Group C and D posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. 


However, interestingly, when it came to Gp A and B posts, it was specifically restricted to be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment.


Justification to such a restriction given was that since the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act (Act to be in addition to and not in derogation of any other law), continued in the same way, however, reservation for Group A and B posts is  to be calculated on the basis of the vacancies for identified posts as per the provisions of the Act.


The court thus decided that the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D and not just Gp C and D). Supreme Court Judgement dated 08 October 2013 in Union of India  Versus National Federation of Blind (Civil Appeal 9096 of 2013) (click on link for judgement).


Accordingly, the DoPT  issued a revision on 03rd December 2013 to its Memo dated 29.12.2005 (click link for a copy)


The way ahead


The tendency of the Government (read Babus) is to find ways to block the entry of the disabled into the mainstream of employment. This undeclared blockade has no direct link with abilities of persons with disabilities and indicates a greater malady that exists in our system. This can only be tackled by a sincere attempt to raise awareness of all government employees from the top order to the lowest about the capabilities of the disabled and also supporting employees with disabilities with reasonable accommodation and equal opportunities to work and prove their worth. At the same time, the executive has to be interpret the benevolent provisions of the Act so as to give effect to the will of the legislature and the mandate of international convention called UN CRPD. 

One out of box idea is to scrap the Identification List  and  the present system of effecting reservation on identified posts. Let all posts be open for persons with disabilities with only condition that each person showcases how he/she will perform the functions of that post. Those competing on merit be not adjusted against reserved vacancies (policy exists but seldom implemented thereby defeating the intent of legislature of minimum 3% reservation). The government on their part must provide reasonable accommodation and an enabling environment to the employees with disabilities. I am sure this will work out and we must give it a try.

Here are some stories on such undeclared blockade and court intervention that recently made headlines in Indian Express and Times of India.

Civils: Centre, state told to implement quota rules for disabled 

Aamir Khan, Indian Express, Mumbai, Thu Dec 05 2013, 11:58 hrs


The Bombay High Court on Wednesday directed the state and Union governments to implement the rules of reservation for differently-abled candidates in civil services. The court also said the rules would apply during promotions.


The court was hearing a PIL filed by the National Confederation for Development of Disabled, stating that the People With Disabilities (PWD) Act was being violated. It sought the implementation of the rule, which provides 3 per cent reservation to disabled people in civil services recruitment. Directing the state and the Union government to implement the rule, the division bench of Chief Justice Mohit Shah and Justice M S Sanklecha directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota.


The petition said the ratio of percentage of direct IAS to IAS by promotion or election was 67%:33% in the state at present. "Therefore, out of 100 new posts, 67 are filled by people who have been directly recruited in the IAS category and 33 posts are filled by state civil service officers. As per the PWD Act, three per cent of the posts in the IAS are reserved for such class of people. Thus, reservation should be applicable to all the 100 posts," the petition stated. It also contended that the quota for PWD had not been filled for 15 years. According to the Constitution, the authorities are under obligation to apply the provisions of the PWD Act. Granting relief to the petitioners, the HC disposed of the petition.


Source: Indian Express


Disabled people clear UPSC, but wait for service allocation

Rema Nagarajan, TNN | Dec 2, 2013, 04.55 AM IST

MUMBAI: Several persons with disabilities (PWDs) who crack one of the toughest exams in the country and get selected for the civil services are routinely rejected with the government claiming there is no suitable service for them. 

Source: Times of India, 02nd Dec 2013
They are good enough to overcome their disability and get selected for the civil services after clearing two levels of exams and the interview, but the Department of Personnel and Training, the allocating authority, rejects them and cancels their candidature.
In the last two years alone, out of 67 such candidates who got selected, 11 are still waiting to be allocated services. Many selected PWDs are allocated lower services  than their ranking merits, on the plea that the nature of their disability prevents them doing the job in most services.

So how do babus sitting in offices decide what candidates with varying levels and kinds of disabilities are capable of? The answer lies in a totally arbitrary list called "list of services identified suitable for physically disabled category along with physical requirements and functional classification" published in the gazette. It lays down what service a successful candidate with disability can get. For instance, under the category of locomotor disability, if the disability affects both hands or arms, you can get into the most sought-after Indian Administrative Service (IAS) but you would not be eligible for any of the other 23 services.

Again, the Delhi Andaman and Nicobar Islands Police Service (DANIPS) is open to those with one leg affected or whose hearing is impaired. However, there is no place for people with these or any other disability in either the Pondicherry Police Service or the Indian Police Service (IPS). How different can the job be in different police services? In an age of economic crime and cybercrime, will the police service be limited to physical fitness or brawn and not brains?

All accounts services, the Indian P&T Accounts & Finance Service, Gr.A, Indian Civil Accounts Service, Gr. A and Indian Railway Accounts Service are open someone with one arm (OA) or one leg (OL) affected or with one arm and one leg affected (OAL) and to those with both legs affected (BL). However the Indian Audit & Accounts Service Gr. A alone is not open to persons with both legs affected. Why is only this accounts service not open to people with both legs affected? Nobody seems to know.

"My disability says both legs affected. But I use crutches and can do all jobs. However, most services are closed to me because some officials who have never met me decided that if both legs are affected, I must be immobile or unable to do most jobs. It is totally unfair. This identification of service has to be done away with. Let them select us, meet us, see what we can do and allocate us services accordingly and by our ranks," says a candidate who cleared the exam earlier but will be appearing again for the civil service exam on Monday, hopeful of getting in again through the 3% quota in all services for PWDs mandated by the Disability Act 1995.

The identification of service ought to be abolished as it is discriminatory under the Disability Act and under international conventions signed by India on ensuring equal rights to the disabled, pointed out yet another PWD. 

Officials in the DoPT did not comment despite several attempts to get their version."Frankly, I am appalled that nine years after this issue was first brought to light, it remains unresolved, that too, against the express orders and directions of the Prime Minister. If the country, the government and the prime minister's office in particular wish to demonstrate their true commitment towards protecting the rights of India's disabled citizens, they ought to resolve this issue once and for all," said Javed Abidi of the National Centre for Promotion of Employment for Disabled People (NCPEDP). He added that in protest against such apathy, NCPEDP will not take part in the "charade" of celebrating World Disability Day on December 3 when "speeches would be delivered, advertisements issued, and some more false promises made".


News Source: Times of India


Monday, August 5, 2013

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.


According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Mechanical and Rigid implementation of Disabilities Act is against the legislative intent

Dear Colleagues,

The cases as below wherein the courts as well as lawyers fail to appreciate the basic intention of the legislature behind the benevolent Persons with Disabilities Act 1995 are indicative of the ignorance in the legal fraternity on the rights of the persons with disabilities.

The DoPT memorandum dated 29 Dec 2005 categorically states in para 22 as under:
22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for
them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question. 
However, rigid cut off marks as 90% would defeat the very purpose of the Disabilities Act and the courts must look at the legislative intent before dismissing such petitions mechanically. An appeal against this order must be preferred in the next superior court to set the things right.

Here is the news coverage from Indian Express 16 Jul 2013


No quota job if cut-off isn't met

The Madras High Court on Monday rejected a plea from K Kumaravelu of Marudhur South village in Nagapattinam district, praying for a direction to Teacher Recruitment Board (TRB) to appoint him as a secondary grade teacher under the priority quota for physically-disabled persons.

After passing the higher secondary examination, Kumaravelu, belonging to a backward class community, completed diploma in teacher education, in 2009. During his school days, he met with an accident and his right leg below the knee had been amputated.

He was issued a certificate by the Joint Director, Medical and Rural Health and Family Welfare in Nagai, fixing his disability at 60 per cent. He also appeared for the TET and obtained 83 per cent marks.

The petitioner contended that against the total vacancy of 12,000 posts, 3 per cent of 360 posts had to be earmarked for the disabled under Sec 33 of the Person with Disability Act, 1995.

Very few candidates were selected under this section. Hence, he must be given accommodation, after giving relaxation in the requirement of 90 per cent marks, he pleaded.

Additional Government Pleader P Sanjay Gandhi submitted that the minimum eligibility marks under the Act was 90 per cent.

No person could claim any relaxation in the matter, he added.

Tuesday, September 25, 2012

Court of CCPD issues notices to Department of Disability Affairs, GOI

Dear Colleagues,


Even after more than 16 years of the Persons with Disabilities Act 1995, there is no Uniform Guideline for availing scribes and writers by the persons with Low Vision and Blindness. The candidates continue to suffer in absence of such guidelines and are often on the mercy of the institution/ departments  both in the matter of studies as well as employment.

A recent PIL by the undersigned against ICAI for putting forth unreasonable guidelines for blind students was just an example in the recent past of such hardships faced by the visually impaired students/persons. Please see my earlier posts dated 26 April 2012 and 02 May 2012 on the subject. The court did solve the problem with its pro-active Order the same day for visually impaired students of ICAI but how many students and how many times will be able to afford going to knock the doors of judiciary?

In the year 2005, All India Confederation of Blind had also drafted a detailed guideline for the scribe highlighting the issues and shared with the Chief Commissioner Disabilities and the  concerned Ministry. This was also discussed during the annual meeting of the State Commissioner's Disabilities in subsequent year. However, it remained pending for a long time due to inaction of the then Disability Division (now Department of Disability Affairs).

Through a consultative process lead by Score Foundation, over 70 organisations working with the Persons with disabilities in India (especially Low Vision and Blind) to which I have been a party myself, had suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons" and sent to  of Social Justice & Empowerment for their acceptance. However, it seems the Ministry has some other priorities than the every day sufferings of the stakeholders for which it exists.

The Department of Disability Affairs, Ministry of Social Justice & Empowerment is the nodal department to coordinate the implementation of the Disabilities Act but have not acted on the issue in the interest of justice to alleviate the hardships of the stakeholders and sitting over the above guidelines for a pretty long time leading to untold miseries and hardships to the stakeholders.

In an unprecedented manner, the Court of Chief Commissioner Disabilities has issued notice to the sister department i.e. Department of Disability Affairs, under the same Ministry and sought explanation in the following unequivocal words:

"Take this show cause notice and explain as to why the Department of Disability Affairs, Ministry of Social Justice and Empowerment, Govt, of India, should not be directed to finalise, issue & circulate to all concerned comprehensive and uniform guidelines/norms for conduct of all examinations (both academic & recruitment related) as soon as may be keeping in mind, among other things, the suggestions of the complainants; and, pending finalisation, issuance and circulation of such comprehensive guidelines/norms, to circulate to all concerned the proposed guidelines/norms submitted by Score Foundation vide their letter dated 06.06.2012 for persons with blindness and persons with low vision and evolved by several organisations including Score Foundation on or before 20.10.2012 under intimation to this Court. The respondent department's reply should also explain reasons for the inordinate delay in finalisation, issuance and circulation of such comprehensive and uniform guidelines/norms for all persons with disabilities.

The Chief Commissioner for Persons with Disabilities has further directed the respondent Department to appear before the Court of the Chief Commissioner for Persons with Disabilities in person or through a representative (not below the level of Group 'A (Class-l officer) or a counsel well versed with the case and with all the related documents on 02/11/2012 at 3.00 p.m. to present the case unless uniform and comprehensive policy for conduct of all kinds of examinations for all persons with disabilities is duly finalised and notified before that date."

To read/download the Show Cause Notice click here.

I congratulate Mr. PK Pincha, Chief Commissioner for Persons with Disabilities, Govt of India for rising up to the expectations in discharge of his constitutional duties under the law. I am hopeful that the officials of the Disability Division will not take it as an adversorial litigation like many other cases in which they keep defending the Ministry's (in)actions in the Delhi High Court and other forums- issue of sign language interpreter being just one odd example that is being contested by the Ministry for over two years now at the Government's expense!

It is an apathy on the part of the Ministry that the stakeholders- the persons with disabilities continue to suffer and it has to defend cases due to its in-actions in various courts and now face this show cause from a constitutional authority like CCPD. Hope the Department of Disability Affairs will notify the guideline without any delay before the next date of hearing in the court of CCPD i.e. 02nd November 2012.

regards

Adv Subhash C Vashishth



Thursday, April 26, 2012

ICAI imposes arbitrary Writers / Scribes Conditions for Students with Disabilities

Dear Colleagues,
The Institute of Chartered Accountants of India (ICAI) is organizing its annual exams starting 03rd May 2012. It has provided “INSTRUCTIONS TO EXAMINEES – MAY, 2012” at link: http://220.227.161.86/26540exam15942.pdf. These instructions are utterly silent on the conditions for  Scribes allowed for Persons with Disabilities as per law, though they are exhaustive on other conditions to be met /observed for the examination.

This time the candidates with disabilities have been surreptitiously sent a three page document titled “Guidelines and Procedure to be followed regarding granting of Writer/ Extra Time to the Differently Abled Candidates”. Coincidentally, this document has not been provided  on the Institute website though is purported to have been adopted by Examination Committee during January 2012 and effective from May 2012 examinations. 

These impugned guidelines are illogical, arbitrary and work against the spirit of The Persons with Disabilities Act 1995 that aims to ensure equal opportunities, Protection of Rights & Full participation of persons with disabilities since they insist the following conditions among others:
  1. The writer should not be above 20 years of age as on the date of commencement of a particular examination for which the writer’s assistance would be utilized by a candidate (for instance 02nd May 2012 for May 2012 CA Examinations)
  2. The writer should be the same person for all the papers of an examination and no request for change of writer shall be permitted.
  3. The writer should not be a relative of the candidate for whom he / she is acting as a writer.
The students with disabilities are in shock as they can not meet such arbitrary guidelines forced upon them. However, most students are not willing to come openly  against the institute for fear of a backlash which may spoil their career.


None of the earlier guideline (for 2007 or 2010 exams) which are available on the ICAI’s website at link: http://www.icai.org/new_post.html?post_id=639 do not contain any of such arbitrary and illogical conditions. The conditions put forth are unreasonable & discriminatory against persons with disabilities and defy the objective and mandate of the Disabilities Act.

I have been approached by several students who have failed to find writers below the age of 20 and are most likely to fall in to trap of missing their examinations despite their good preparation for the same.

Also since this is an exam season and most teen-aged students who may be eligible to act as writer as per the eligibility condition put forth by the new guideline,  are busy in their exams hence it is next to impossible to meet such a unreasonable guideline. Moreover, the relatives have been barred from acting as a writer. I am wondering as to who would then come forward to help (even at a cost!) to write for them. They are bound to fail due to lack of level playing field!

The condition that write should be same for all the papers spread over a length of period is also a detrimental to the interest of the examinee  since the teenager, who may agree to write the exam for the disabled student may have his own exam clashing. Then most students in graduation second or third year are more than 20 years.

Such attitude with the students with disabilities is an open discrimination and a discouragement for them to enroll for the course and not only is against the mandate of the Disabilities Act but also Article 14 of the Constitution of India that ensures equality to all. The names of the students have been withheld on their request since they fear revengeful action on the part of ICAI.

I have taken up the matter with the Chief Commissioner- Disabilities and hope that good sense will prevail over the ICAI and they would withdraw the unreasonable guideline.


If you remember, recently, several organisations working for the Persons with disabilities in India (especially Low Vision and Blind), to which I have been a party myself, have suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons". These have been sent to Ministry of Social Justice for their acceptance. In all probability these would be accepted since the content is the revised edition of the draft guidelines discussed in the Meeting of the State Commissioners Disabilities in the year 2008, if I correctly remember hence has a principal approval from the authorities.


I suggest the ICAI to accept these guidelines in toto for implementation in all their examinations (including the one in May 2012) and take a lead in being the first progressive and disabled friendly institution of the Government of India.


regards,
Subhash Chandra Vashishth
Advocate- Disability Rights

Sunday, April 22, 2012

Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled - Delhi HC [Judgement Included]

Dear Colleagues,

Refer to my earlier posts on 02 Sep 2009, 09 October 2009 and 21 January 2010 on the issue since the matter has been pending before the Delhi High Court. There were several occasions that the Court was about to pronounce judgement however, Union of India bought time on each hearing with a promise that they are amending the rules to remove the discriminatory practices against the persons with disabilities (read employees) in insurance sector and dragged the case to 2012. However, at the end, the court got infuriated the way the Government turned turtle on their own statement before the court and tried to justify the discrimination of extra premium.

The brief background of the case

In the instant case, the petitioner Mr. Vikas Gupta, through a public interest litigation, filed by  Mr. Pankaj Sinha, a lawyer with visual impairment from Human Rights Law Network,  brought to the notice of the court that the Postal Life Insurance Policy issued for the benefit of government employees was inherently discriminatory against employees with disabilities. It allowed the maximum sum insured for employees with disabilities to only Rs. 1 lac while their non-disabled counterparts enjoyed a maximum insurance cover of 5 lacs. Not only this, the employees with disabilities were paying a higher premium than those without disabilities.

Thus through this litigation, the petitioner sought parity in the maximum sum assured and premium charged from the employees with disabilities in comparison to the employees without disabilities. When the matter came up for hearing and notice was issued, Postal Life insurance realizing their follies, issued a notification during pendency of the petition raising the maximum insurance coverage for employees with disabilities to that of non-disabled employees i.e. up to Rs. 5 lakhs. However, they continued to charge extra premium from the employees with disabilities.

The petitioner argued that the extra premium charged was without any scientific justification. When the court sought explanation from PLIC, the Additional Solicitor General stated before the court that they do not discriminate on the basis of disability and there is no extra premium charged.

However, later Union of India turned turtle on their statement and justified the extra premium from the employees on the blanket ground of disabilities and argued that the Insurance Policy was a contract between the insurer and the insured. That in the insurance business a pool was created through contributions made by persons seeking to protect themselves from common risk. Premium was collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event was paid out of this pool. It worked on the principle of risk sharing. Therefore, prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.  Hence, it is justified to charge extra premium from the employees with disabilities. They also argued that extra premium payable by the disabled person is marginally different from the premium payable by normal persons. Further they justified the extra premium on the ground that the extent of handicap differs from one person to another and that they would continue to charge differential premium decided upon the health profile of the individual proponent.

The petitioner argued that the extra premium clause has no scientific base nor can be justified by any legal enactment or any empirical study. On the contrary, such a standalone stipulation for Persons with Disabilities in form of a special scheme in the Postal Life Insurance for Government employees was discriminatory, non-inclusive, unjust and violates principles of natural justice of equity and fairness and above all it ran against the mandate of the Persons with Disabilities Act 1995 and the UN Convention on the Right of Persons with Disabilities that India is a proud signatory to. Further, it specifically violated Articles 3 and 25(e) of the UN Convention.

The petitioner accepted the rationale of PLI to the extent that any loss to the insured in case of happening of an uncertain event is paid out of this pool and that it worked on the Principle of risk sharing. However the petitioner strongly refuted that disabled persons are more prone to accidental risks as compared to normal persons. On the contrary, the petitioner argued, there was no empirical study or data to support or substantiate such a baseless, false and biased view which only reinforced the stereotypes about persons with disability and their proneness to accident.

Petitioner argued that the right to equality and non-discrimination were inalienable rights which couldn't be taken away by any contract and charging extra premium from employees with disabilities was a direct discrimination with them on the basis of disability which was in direct conflict with Article 2 of UNCRPD.

The petitioner also argued that the justification of health profile put forward by the respondents was faulty for they seem to treat disability as a negative health profile. It was stressed that living with disability was distinct from suffering from a life threatening disease, while the respondent seemed to consider both as synonymous. An employee with visual impairment or with hearing impairment or with neurological impairment also enjoyed good health like anybody else. Therefore, an employee living with a disability would not mean that he / she was suffering from a disease and prone to life risks or susceptible to die prematurely. Such a conclusion on the part of respondent was illogical, arbitrary, had no empirical base and without any understanding of disability, hence, such a conclusion was required to be struck down.


Hon’ble High court in the instant case agreed that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and therefore through this remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.
The Road Ahead

I see this judgment  as a milestone in the disability rights movement with far-reaching implications not only in India but also beyond India and especially in European countries where the Actuaries continue to discriminate against persons with disabilities by under-valuing their lives. However, India, its Courts and the persons with disabilities are very progressive on this front and the western countries can follow suit at least on this count.

This is just a beginning. We need a well devised future strategy  to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the immediate challenges are:

(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. causes of disability, whether it is from birth and after birth; neurological or physical and  then rates their lives accordingly,  which in my considered view has again no scientific base.

(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.

(c) PLI is an insurance scheme for the benefit of government employees hence, it will cover a very small section of persons with disabilities. Those who are outside the government jobs especially those in rural areas are far away from reaping the benefits of insurance. Though the judgement challenges the principles that have so far formed the basis for denying the  insurance to the disabled.

(d) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware not only about the lives of persons with disabilities but also the rights regime that UNCRPD brings.

(e) The entire literature on insurance that I had to read while pursuing this case from outside, I found it reinforced the stereotypes about persons with disabilities and their proneness to accident! Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile and that living with disability was distinct from suffering from a life threatening disease.

(f) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.

(g) The rules of Insurance sector needs to be changed in light of this judgement and applied across the sector. All insurance  issuing companies - be it private or government have to factor in the principles of this judgement and make amends.

(h) The discrimination continues unabated in not just in `life insurance, sector but in health insurance and other insurance products on the offer. This needs to be addressed on priority.

(j) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means.  

I am sure we all are up for it and would take this to its logical end.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights

Friday, April 6, 2012

Supreme Court of India issues notice to SpiceJet for deplaning disabled woman

Dear Colleagues,

Please refer to my earlier post on an incident wherein disability rights activist Jeeja Ghosh who was forcibly deplaned from a Goa-bound SpiceJet flight from Kolkatta in February because the pilot felt she was unfit to fly. On Jeeja's petition, honorable Supreme Court of India has issued notices to the Union Government, Airliner and the DGCA.

A bench of Justices Aftab Alam and Ranjana P Desai issued notices to the Union government, the Directorate General of Civil Aviation (DGCA) and SpiceJet on her petition accusing the private airline of subjecting her to traumatic treatment on February 19 and depriving the organizers of her expertise during the international seminar.

"Jeeja Ghosh has experienced similar experience before. In 2008, she was forced to undergo a medical examination before being allowed to board an Indigo flight from New Delhi to Kolkata," the petitioner said and sought an investigation into the incident.

"These acts of discrimination which have left disabled people very upset have continued unabated despite the enactment by the Central Government of clear and binding directives prohibiting discrimination against disabled persons in air transport," said Jeeja.

She requested the apex court to direct "SpiceJet to adequately compensate the petitioner for loss of money, wasted time and the humiliation and trauma suffered during the unsavoury incident".

This case coupled with the uproar in the disability sector has pushed the Government of India/ DGCA too hard to take a swift action against the Airliner and if required amend the Regulations to include penalty clauses, if need be.

The result has been several meetings with the stakeholders and now constitution of another committee to suggest changes in the existing CAR to make it more inclusive and give it more teeth.We hope this would not be another lip service and another rule book to meet defiance rather than implementation that we see with the existing CAR.

The story has been covered by

(a) The Times of India: Cerebral palsy afflicted woman moves Supreme Court, demands compensation from SpiceJet

(b) The Hindu : Court Notice to Centre, DGCA on deplaning of disabled

(c) The Indian Express: SC notice to SpiceJet for deplaning woman

Thursday, March 15, 2012

Mumbai High Court rules Doctors with disabilities can not be denied admission to PG Courses

Please refer to my earlier post in which the Bombay High Court had allowed admission of a disabled girl to the MBBS Course. However, it seems MCI doesn't want to be pro-active in considering disability from a human angle (doctors have been trained to look at disability from a medical angle... so it may not be their fault, its a systemic problem! :-)

However, MCI may learn from the increasing number of cases getting reprieve from the High Court on such issue and frame a disability friendly policy rather than a medically oriented "degree of disability" policy without any human touch and effort to see the ability in the disability !

Three disabled doctors get high court's reprieve

MUMBAI: Three disabled doctors who were denied the chance for admission to PG Medical Courses have got reprieve from Bombay High Court.  A division bench of Chief Justice Mohit Shah and Justice Ranjit More, in an interim order, directed authorities to consider their case for admission to a PG course in (medicine) or in a non-surgical branch. 

"(Their case would be considered) under physically handicapped category by considering (them) to be eligible for such reservation and on the basis of performance in the CET," said the judges. 

The petitions challenged the constitutional validity of the rules, which said that a candidate with more than 70% disability of the lower limbs cannot be considered to be eligible for admission. The lawyers for the petitioners said the MCI had erred in not considering that the medical courses can be divided into several categories. Dr Manoj Landge, Dr Rakesh Ukey and Dr Astha Ganeriwal were considered ineligible for admissions under this rule.  

Wednesday, December 14, 2011

How to define Disability- dismissal from Medical College on grounds of learning disability upheld

How to define disability?

Appeals court rejects suit by ex-student against medical school | Inside Higher Ed

WASHINGTON -- A federal appeals court ruled Friday that George Washington University was within its rights in 2003 when its medical school kicked out Carolyn Singh, having determined that she was not meeting academic standards. Singh was diagnosed as having a learning disability shortly before she was dismissed, and she claimed that GW violated the Americans with Disabilities Act by not accepting her diagnosis and approving adjustments she requested.
The decision could be important not only for Singh and the medical school, but for others in higher education who are debating how to determine whether students have learning disabilities and, if so, what kinds of accommodations are appropriate for such students.
Several college associations filed a brief in the case arguing that colleges and courts need to have leeway to evaluate the validity of claims that students have learning disabilities. The brief argued that many such claims may not be accurate, and that colleges risk being unfair to other students if they accede to all of the requests for accommodations. Lawyers for Singh, however, argued that the college associations' brief was pushing for too much leeway for higher education, in ways that could limit the rights of students with disabilities.
Another issue in the Singh case was the applicability of revisions to the ADA made subsequent to her dismissal. The appeals court ruled that applying those provisions retroactively would be unfair to the university.
In terms of the applicability of this case beyond Singh's claims, the key part of the decision was on whether a district court had reasonably denied her attempts to link her academic performance to any disability she may have.
Singh was admitted to the medical school despite lower than standard scores on the Medical College Admission Test, and was allowed to enroll in a special program in which students spread out their initial courses over a longer time frame than normal. Despite a prior good academic record, she did poorly at GW and was regularly at risk of being asked to leave. The court record cites evidence that she was repeatedly advised to focus more on her academic work and to cut back on an active extracurricular life (taking a music class, serving on student government committees, and serving as the student government's social chair).
Only after a committee recommended her dismissal (but just before a decision was made by the medical school administration) did Singh seek an evaluation of a possible disability, and she was diagnosed with dyslexia and a "mild processing speed disorder." The university shortly after that dismissed Singh, and officials said that they did not consider the disability diagnosis in their decision.
In the appeal, lawyers for Singh (who could not be reached for comment) argued that the district court had been too quick to dismiss evidence of disability, and specifically to rely on Singh's past academic success as evidence of her ability to do well. The brief said that Singh had a particular problem with multiple-choice questions, and that she had managed to avoid being evaluated on their basis before med school. Singh "attained her achievements by avoiding the very activities in which she was limited," the brief said.
Further, the brief said that the university and the college associations were arguing for "broad deference" in ADA cases, which Singh's backers argued was inappropriate. "[D]eference is inappropriate because it would effectively immunize academic institutions from liability for their violations of the ADA by granting deference to the very decisions suspected of being discriminatory," the brief said.
Friday's ruling, however, said that the district court had ample evidence to reject Singh's claims. The ruling noted that the district court judge cited a range of possibilities -- including Singh's study habits, extracurricular activities, and statements that she had experienced stress after the 9/11 attacks -- to say that she had failed to demonstrate conclusively that her academic difficulties were related to a disability. For this reason, the appeals court said, the district court had made a reasonable decision.
A statement from GW said that the university "is pleased with the court's unanimous decision. The court's analysis provides important guidance not only for GW but also for other colleges and universities which may face similar situations."
Concerns About Learning Disability Claims
A brief filed by the American Council on Education, the Association of American Medical Colleges and the Graduate Management Admission Council (plus several colleges in the District of Columbia) said it was important for courts to consider flaws in diagnoses of learning disabilities. "In most cases, it is far more difficult to confirm the existence of mental impairments and to evaluate the resulting functional limitations than it is when dealing with physical impairments," the brief said.
While the brief stated that the groups do believe that some students have learning disabilities, it offered much skepticism about the growing number of such diagnoses made on behalf of students. The brief said that "there are no universally agreed-upon standards" for diagnosis, and studies showing that students diagnosed under some systems might not be deemed learning disabled under other models. Further, the brief said that "some individuals 'exaggerate' their symptoms" to be diagnosed and to receive accommodations.
These issues have "important implications," the brief argued. Request for accommodations on standardized tests "could alter ... procedures that produce reliable and comparable test scores," the brief said.
It also raised issues of fairness to all students. "[S]tudents have a legitimate interest in ensuring that supplemental academic services that are not available to all students are provided only when warranted," the brief said.


Read more: http://www.insidehighered.com/news/2011/12/12/appeals-court-rejects-suit-ex-student-against-medical-school#ixzz1gU1wVn7B
Inside Higher Ed

Thursday, November 27, 2008

Top Canada Court favours right to two seats for disabled passengers at no extra cost!

Dear Friends

I am thrilled to see such turnaround happening around the Globe. Though it is applicable to the domestic flights only, it is a remarkable ruling from the top court of the country.

Here are the news for your information:

regards,
Subhash Chandra Vashishth


Disabled Passengers have the right to two seats: Canadian court decision
November 20, 2008

Canada's largest airline is trying to figure out which obese and disabled passengers will be eligible for additional seats at no charge after the country's Supreme Court rejected an appeal by the airlines.

The Canadian Transportation Agency issued an order last January requiring Air Canada and other domestic airlines to make additional seats free to disabled or obese passengers who need extra room.
The airlines' appeal was rejected twice, first by the Federal Court of Appeal in May, and then by the country's highest court on Thursday.

Air Canada spokesman Peter Fitzpatrick said Monday they are developing detailed eligibility rules for free seats. The ruling Thursday applies only to domestic flights and will be implemented January 9, 2009.

"It's been basically left to the airlines to determine how they are going to comply," Fitzpatrick said. "We're working on it now."

Under the ruling, airlines cannot charge extra for an obese person who needs an additional seat or a disabled person who needs space for a wheelchair or stretcher or who must be accompanied by an attendant.

David Baker, the Toronto lawyer who fought the case on behalf of disabled passengers, said the ruling will allow more disabled people to travel. Joanne Neubauer of Victoria, one of two people whose complaints sparked the case, said the news made her feel like "an equal citizen in this country."

Neubauer who suffers from rheumatoid arthritis and uses a motorized wheelchair.

Air Canada and WestJet, Canada's second largest carrier, said they will comply with the transportation agency's order. WestJet spokesman Richard Bartem said his company may consider extending the policy to international flights.

Bus, train and ferry companies have long made arrangements for free extra seats, but the airline industry had argued it would lose too much money by doing the same.

The transportation agency rejected claims that providing extra seats would impose an "undue hardship" on airlines, saying they can afford the financial burden.

The agency estimated the cost to Air Canada at about $7 million Canadian (A$8.7 million) a year and to WestJet at about $1.5 million Canadian (A$1.9 million) a year. The agency said that amounts to about 77 cents Canadian a ticket for Air Canada and 44 cents Canadian for WestJet.

To put it another way, the agency said the cost would be 0.09 per cent of Air Canada's annual passenger revenue and 0.16 per cent of WestJet's revenue.

Top court backs free seat ruling for some disabled, obese travellers

Last Updated: Thursday, November 20, 2008 4:08 PM ETCBC News

The Supreme Court of Canada has upheld a regulatory ruling requiring airlines to offer a free extra seat to certain disabled and obese people.

In a decision released without comment Thursday, Canada's top court rejected an application by Air Canada and WestJet for permission to appeal a Canadian Transportation Agency ruling issued earlier this year.

The court's decision means airlines must offer a "one person, one fare" policy to disabled people who require room for an attendant during the flight or require extra room for a wheelchair, or for people who are clinically obese and take up more than one seat.

Bus, train and ferry companies have long agreed to such arrangements, but the airline industry has argued it would lose too much money by doing the same.

The case has wound its way through various agencies and courts for years. It was originally brought forward in 2002 by three parties:

* Victoria resident Joanne Neubauer, who has rheumatoid arthritis and requires a personal attendant, wheelchair and crutches.* Eric Norman, a man from Gander, N.L., who had a rare disease that impaired his motor skills. He has since died.* The Council of Canadians with Disabilities.

Calgary law Prof. Linda McKay-Panos, who was later granted intervener status, has been arguing for the rights of obese travellers since she was charged for 1½ seats on a 1997 Air Canada flight.

McKay-Panos argued anyone who is clinically obese has a disability and should not have to pay for more than one seat. She has polycystic ovary syndrome, an incurable condition that can lead to obesity.

McKay-Panos said Thursday she was happy with the decision, but her main concern is how the airlines will implement the new regulations.

"I think whatever they do, it has to be done with dignity and not in public and [not be] humiliating or anything like that, and not in front of people on the airplane," she said.
Spokespeople for WestJet and Air Canada said they will comply with the decision.

Questions surrounding decision

But WestJet spokesman Richard Bartrem said there are still many unanswered questions.
"Will we be putting criteria in place to determine whether somebody travels with an attendant out of necessity or out of desire?" he said. "What is morbidly obese? How are we going to be able to make that determination and implement that respectfully, and consistently and fairly?"

In 2006, the agency held public hearings on air travel costs for people with disabilities.
This past January, the CTA ruled airlines must offer a single fare to people with disabilities who require an attendant during the flight and clinically obese passengers. It gave the airlines one year to implement the policy.

WestJet and Air Canada turned to the Supreme Court after the Federal Court of Appeal rejected their bid to appeal the ruling.