Madrash HC: Chennai Metro Stations do not meet accessibility mandate of Harmonized Guidelines - argues Disability Activist

Court:         Madrash High Court

Bench:        Admitted by Bench of M.M.SUNDRESH, J. and R.HEMALATHA, J.

Case No.     W.P. No. 11041 of 2020

Case Title:  Vaishnavi Jayakumar  Vs. State Commissioner for Persons with Disabilities & CMRL

Case admitted on : 21.08.2020

Next Date: 27.07.2022

Case Brief

This Writ Petition has been filed by our colleague Ms. Vashnavi Jayakumar of Disabilty Rights Alliance, under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus Directing the 2nd respondent i.e. Chennai Metrol Rail Ltd.  to forthwith retrofit its existing metro stations to comply with the Harmonised Guidelines and space standards for Barrier Free BuiltEnvironment for persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development in 2016 and to strictly comply with section 41 of the Rights of persons with Disabilities Act 2016 read with Rule 15 of Rights of persons with Disabilities Rules 2017 in the design and Construction of metro Stations under Construction, including stations planned in the future.

The petitioner informed the court that the metro stations constructed by the respondent CMRL were in violation of the law and were not universally accessible. As per the petitioner, the following features needed to be included in the stations:

i. Anti-reflective flooring which contrasts with walls in colour and is non-slip in dry or wet conditions (resistance of 40-70)

ii. Wheelchair accessible ticket counter with audio induction loop for hearing aid users

iii. Accessible kiosks for blind passengers and wheelchair users.

iv. High contrast signage, displays, information tools and controls with multimodal communication

v. Sliding doors for accessible toilets

vi. Universally designed safety and evacuation equipment

vii. Tactile, high contrast way-finding

viii. Accessible parking

Through various interim orders, all the 32 Metro stations of the CMRL were access audited to see if they meet the requirements of the Harmonised Guidelines and Space Standards 2016 and the respondent has been implementing the same to comply with law.

On 11 Sep 2020, the bench of Mr. Justice MM Sundresh and MRs. Justice R. Hemalatha  directed the first respondent to depute his officials to undertake inspection exercise after making inspection to the existing Metro Rail Stations and file a report on the sufficiency of the infrastructure facilities qua disabled persons. A report in this regard will have to be filed on or before 06.10.2020.

On 11 Dec 2020, the learned counsel for the petitioner had drawn the attention of the Court to Rule 15 of the Right of Persons with Disabilities Rules 2017, as well as the order of ad-interim direction dated 28.06.2016 made in WP.No. 38224/2005 titled Rajiv Rajan Vs. CMD, Metropolitan Transport Corporn (Chennai) Ltd.  and submitted that in the light of the mandate cast upon the relevant statutory provisions, it is obligatory rather mandatory upon the 2nd respondent to strictly comply with the said provisions so as to make the Metro Rail Stations as well as travel disabled friendly and prays for appropraite directions.

On 15 June 2022 the counsel for the second respondent/CMRL submitted that the matter may be taken up after six weeks so that they can take further action to comply with the Harmonised Guidelines and space standards for Barrier Free Built Environment for persons with Disabilities and Elderly Persons. It is, however, submitted that except this, necessary action has already been taken, leaving few, which would also be taken up within the period of six weeks.  

In view of the submissions made by CMRL, the respondents have been given time to take necessary action. The matter has been posted to July 27 for further hearing

Watch out this space for the developments.

Centre Govt. informs SC that it notified the standards of pupil-teacher ratio for special schools and separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools

Govt. of India has confirmed before a Supreme Court bench comprising Justices A M Khanwilkar, A S Oka, and J B Pardiwala on 21 July 2022 that it has accepted the  norms and standards of pupil-teacher ratio for special schools and also separate norms for special educators, who alone can impart education and training to children with special needs in general schools, as recommended by the Rehabilitation Council of India (RCI). In its compliance affidavit filed before the Hon'ble Supreme Court, the Ministry of Education referred to the norms and standards as per which the recommended pupil-teacher (special education teacher) ratio for regular (inclusive) school is 10:1 for the primary level and 15:1 for the upper primary, secondary and higher secondary level.

The letter also clarifies that the parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers at national and state levels", it is related to respective State Governments/ UT Administrations as Education being in the concurrent list of subjects.

With this, a long pending issues have been settled and implemented regarding status of special education teachers  (under RCI) at par with the B Ed. teachers (under NCTE) and also that children with disabilities would be taught only by teachers trained under RCI and the educational insstitutions will also ensure that the teacher pupil ratio as prescribed by the RCI is maintrained to ensure quality of education and to comply with the provisons of the Rights of Persons with Disabilities Act. 

The department of school education and literacy, Ministry of Education, had issued a letter on June 10, 2022 to the education secretaries of all the states and Union Territories (UTs), the commissioners of 'Kendriya Vidyalaya Sangathan' and 'Jawahar Navodaya Vidyalaya Samiti' wherein the norms and standards of pupil-teacher ratio (PTR) have been circulated with a request to take further necessary action in the light of the apex court judgement and furnish an action taken report to the department.

"Since this department has finalised the norms and standards i.e PTR for special teachers/special educators who alone can impart education and training to CwSN (children with special needs) in the general schools, it is humbly submitted that this department is in the process of issuing notification by amending the 'schedule' of the RTE Act, 2009, in compliance of para 34 of the judgement dated October 28, 2021, passed by this court. It is further submitted that this process is likely to take 4 to 6 weeks," the affidavit said.

Supreme Court was hearing the complinace of its judgement passed on 28 Oct 2021 in Writ Petition (Civil) No. 132/2016 titled Rajneesh Kumar Pandey & Ors versus Union of India & Ors, wherein the Court had said that the Centre must forthwith notify the standards of pupil-teacher ratio for special schools as also separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools across the country.

The bench, however, posted the matter for further hearing on August 17, 2022 asking the concerned states and UTs to submit the compliance report to the Secretary of the Ministry.

The affidavit said the committee, as formed by RCI to formulate the norms of special educators in special schools, was also requested to formulate the norms, guidelines, standards on ratio, roles, responsibilities, etc of special teachers/special educators in general schools in view of the apex court directions. It said the draft norms were submitted to the ministry by the RCI.

 RCI has also recommended and redefined the "role of special teachers", while being a catalyst to empower children with disabilities, they will undertake certain responsibilities for facilitating inclusive education. It included providing tips for making an inclusive school climate, culture, and ethos where all systems from admission to assessments, teaching, and evaluation are disabled-friendly. The letter also referred to the "outreach activities" for special teachers which include, undertaking home visits and support home training programs. The "suggested activities" for special teachers, will also include developing an annual/monthly calendar of activities for inclusion.

Here is the judgemment of the Hon'ble Supreme Court: 

Writ Petition (Civil) No. 132/2016 Rajneesh Kumar Pandey& Others VERSUS Union of India & Others. 

Supreme Court follows up on implementation of its order in Disabled Right Group Vs UOI dated 15 Dec 2017 with University Grant Commission

Court: Supreme Court of India

Bench:  HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE A.S. BOPANNA

Case No.:  BY COURTS MOTION Misc Application No  MA 1637 of 2019 in W.P.(C)No.292/2006 

(Arising out of final judgment dated 15-12-2017 in a disposed off matter W.P.(C)No.292/2006 in categories of matters 3100-Admission To Educational Institutions Other Than Medical & Engineering)

The Hon'ble Supreme court followed up on its final judgement  dated 15.12.2017 by initiating a miscellaneous application on its Own Motion on 08.08.2019 after observing that the University Grants Commission did not take sufficient steps to implement the enabling judgement desspite passage of over one and half years.

Below are various hearings in the MA.

• 08 August 2019 - Own Motion Misc. Application initated by Hon'ble Court.
• 25 October 2019 - The Counsel appearing on behalf of the University Grants Commission stated that a Committee has been constituted in pursuance of the judgment and he seeks two months’ time to place on the record a report indicating the action taken. Two months’ time, as prayed for, is granted.
• 24 January 2020 - UGC prayed for four weeks time to place the report of the Committee on record. Time was granted.
• 08 October 2021 - It was stated that the report of the UGC is ready and in fact the affidavit was also prepared, but, since there was a delay of a few days, the affidavit had to be filed with an application for condonation of delay. The Corut permitted the UGC to file its affidavit within a period of two weeks. An updated status report was directed be filed on behalf of the UGC within a period of four weeks.
• 22 November 2021- It was stated that an updated status report shall be filed and a copy of the existing report and the updated report shall be served on all the learned counsel. It has also been stated that in order to facilitate the updated status report being submitted, necessary inspection is being carried out of the colleges.
• 13 December 2021 - Again Two weeks’ time was granted for filing updated report of the University Grants Commission.
• 10 January 2022 -  An updated status report has been filed by the University Grants Commission (UGC). The status report indicates that pursuant to communications addressed by the UGC, responses have been received from 334 universities and 553 colleges. The Committee which has been constituted by the UGC to prepare accessibility standards related to infrastructure, pedagogy and curriculum for educational institutions in consultation with the Chief Commissioners has initiated work.  A draft working framework for guidelines has been placed on the record. The status report indicates that visiting teams are being finalized to formulate modalities to carry out inspection of educational institutions to ensure implementation of the provisions of the RPWD Act and a Committee of experts would be set up for this purpose. The guidelines are expected to be finalized shortly, after which inspections are envisaged. The court directed the UGC to ensure that the guidelines are finalized before the next date of hearing. Work on the inspections should also commence. A status report should be filed of the progress made. The court requested the UGC to be proactive. However, in view of the current stage of the pandemic the court directed that the proceedings be now listed on 14 March 2022. Compliance shall be reported at least a week before the next date of listing. The report and guidelines shall be made available to all the concerned stakeholders and shall be uploaded on the website of the UGC.
• 14 March 2022- It was stated that the Accessibility Guidelines have been notified on the website of UGC and suggestions to the Guidelines have been invited. The last date for the receipt of submissions is 25 March 2022. 2 Since the process of finalization of the Accessibility Guidelines is being carried out, the proceedings shall now be listed after three months so that the Court can be updated with a fresh status report. (PDF 43.4 KB)
• 25 July 2022 - The University Grants Commission has finalized the Accessibility Guidelines. The Guidelines have been circulated to all the Universities and have been placed on the website of the UGC. The Accessibility Guidelines envisage phase-wise implementation, so as to achieve the purpose of the Rights of Persons with Disabilities Act. The UGC shall ensure that the Guidelines are duly monitored and that periodic steps are taken to review the progress in implementation. Since the Guidelines have been framed in pursuance of the judgment dated 15 December 2017, no further directions are necessary, at this stage. The Miscellaneous Application is accordingly disposed of.  (PDF 48.6 KB)

Madrash HC: M. Gnanasambandam Vs. Govt. of India | WP No. 923 of 2007 | 05 July 2022

Court:                     Madras High Court

Bench:                    Mr.Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.                WP No. 923 of 2007

Case Title:             M. Gnanasambandam  Vs. Union of India 

Date of Order:       05 July 2022

This Petition was filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to take the following measures to facilitate the effective implementation of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995: 

I. To frame and notify comprehensive Rules immediately for according recognition to various types of Schemes (Educational Institutions for the Disabled) as provided under Chapter V Education under the PWD Act. 

II. To distribute scholarships to all school going children with disabilities in time. 

III. To direct the Central and State Governments to issue notifications to make schemes to provide Aids and Appliances to persons with Disabilities. 

IV. To direct the respondents to enquire into in detail from the year 2002 onwards about the alleged violations in the distributions of Aids and Appliances under ADIP Scheme as well as Inclusive Education Programme under Sarva Shiksha Abiyan and submit a Report before this Hon'ble Court. 

V. To direct the respondents to initiate necessary punitive action against those responsible for such kinds of nefarious acts and take suitable measures to prevent such malpractices in future. 

VI. To direct the respondents to make schemes providing for medical benefits, expenses and treatment for persons with Disabilities.

VII. To direct the respondents to make provisions for terminally ill and chronically sick children with disabilities as well as adult and aged persons with disabilities for providing life ling care, protection and medical treatment free of cost, irrespective of the type of disability. 

VIII. To direct the respondents to provide with appropriate social security to the destitute and abandoned children as well as adult and aged persons with disabilities, till their death, irrespective of the type of disability. 

IX. To direct the respondents to streamline the admission of persons afflicted with mental illness in appropriate Pshychiatric Rehabilitation Centres. 

X. To direct the respondents to form a Monitoring Authority or Enforcement Mechanism at the State as well as District levels which can be empowered to supervise and report to the Chief Commissioner for Persons with Disabilities and the State Commissioner for the Disabled about the proper implementation of the provisions of the Act in the respective States.

XI. To direct the respondents to entrust the State and District Legal Services Authority with the task of protecting the rights of persons with Disabilities. 

XII. To direct the respondents to bring all the social legislations viz., 

i. The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. 

ii. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; and

iii. The Juvenile Justice (Care and Protection of Children) Act 2000 under one umbrella; and 

XIII. To direct the respondents to empower the State and District Legal Service Authorities to supervise the smooth functioning of the above Acts at all levels. 

The writ petition was registered as Public Interest Litigation, pursuant to the letter written by the petitioner.  Taking note of the issues raised in the petition, directions were issued by this Court while taking cognizance of the matter and sought for compliance. 

The compliance report has been submitted from time to time. Below the interim order passed on 10 December 2020. 

   

 After the registration of the petition, there are changes not only in terms of the position of law, but even in reference to the administrative instructions, such as Guidelines for the Government/Public transport. Rules of 2017 was introduced and Rule 15 of the Rules 2017 was applicable. The Harmonised Guidelines was also issued and thereby, there is a sea change subsequent to the registration of the case on all the issues.

In view of the above, it would be appropriate to close the writ petition with liberty to the writ petitioner to come up with a fresh writ petition if any issue remains unaddressed. There will be no order as to costs.

Read the final dated order dated 05 July 2022 embedded below: 

Madras HC | TN Govt. GO to the extent it offends RPWD Act or Provisions of Harmonised Guidelines & SC Judgement in Rajive Raturi case.

Court:          Madras High Court

Bench:         Mr. Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.      W.P.No. 5957 of 2021

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

Date of Judgement: 05 July 2022

The writ petition challenges a G.O.  on the ground of violation of Section 41 of the Rights of Persons with Disabilities Act, 2016. It is also on the ground that when no direction has been given by the Apex Court to have only 10% of the government buses disabled friendly, G.O. indicates only 10% of the total number of Government buses to be low floor buses. 

Further to our previous post dated 22 July 2021 titled Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly.

On 26.08,2021, it was again submitted on behalf of the State that even though the legal requirement may not have been complied with, certain other factors need also to be taken into consideration, particularly in the wake of the pandemic and the economic loss suffered by all States, including this State. It is further submitted that though it is imperative that all buses become disabled friendly, but the disabled friendly buses cost much more than ordinary buses and require much better road conditions, particularly within the city limits, than may now be available. 

The bench however, said, "Appropriate measures should have been taken much earlier so that things would not come to such a pass. Though it can be appreciated that the pandemic has caused a severe loss and city roads may still not be viable to receive low platform heavy duty vehicles, there has to be much more acquisition of disabled friendly buses and investment in appropriate roads since the law has been in place for a considerable period of time. At the same time, some latitude may be offered so that the larger public interest is served and the blanket embargo on acquisition of buses does not completely disable the public transport system."

Matter was finally heard and disposed off on 05 July 2022, in following terms:

"the writ petition is disposed of causing interference with G.O.Ms.No.31 dated 24.02.2021 only to the extent that it offends any of the provisions of the Act or Rules or the Harmonised Guidelines issued by the Government of India and directing the respondents to ply all the Government buses, in conformity with the provisions of the Act and Rules and the Harmonised Guidelines quoted above and in the light of the judgment of the Apex Court in the case of Rajive Raturi supra. There will be no order as to costs

 Read the Judgement dated 05 July 2022  embedded herein below:

67 per cent Indian Court Complexes report they are not accessible to Persons with Disabilities.

 Dear colleagues,

The Hon'ble Supreme Court (SC) directions on 15th Dec 2017 came as a shot in arm for the efforts to make public places and builidngs accessible for persons with disabilities. But when the Supreme Court Registry compiled a report (based on the self reporting by the courts and not based on access audits by professional access auditors), that indicates only 33% court complexes claiming to be accessible and a whopping 67% court complexes are still defying the law of the land to allow equal participation and access to justice for persons with disabilities and those with age related impairments.

On January 15, 2019, Hon'ble SC had said, "More than a year has passed since the judgment was delivered. The indifferent attitude of the States and the Union Territories shows that they are not serious in complying with the directions contained in the judgment... We take strong exception to the lackluster attitude." It had given three weeks to the states and Union Terriroties (UTs) to implement its December 2017 judgment directions.

At a time when an extreme heatwave has gripped the country, judicial officers in 83% of courtrooms are sweating it out to read through bundles of case files and hear heated arguments from lawyers. For, only 17% of courtrooms have air-conditioning facilities as per the SC report. 

But, these are not the only reasons why Chief Justice of India (CJI) N V Ramana had vigorously pushed for a state level judicial infrastructure development authority, which fortunately struck a chord with the Chief ministers and the Chief Justices of the High Courts. However, Justice Ramana's proposal for a national level judicial infrastructure development authority has been pegged back for further discussions.

In a communication to the Union government, the CJI had highlighted the abysmal condition of the court complexes across the country. Toilets, essential to ameliorate pressing daily needs of lawyers and litigants, are absent in 16% of the court complexes. As many as 26% of the court complexes have no washroom facilities for women. The condition of existing toilets in most court complexes in semi-urban areas, visited by hundreds of litigants and lawyers, is nauseating.

The other deficiencies in court complexes are equally concerning: 

• 95% of court complexes are not equipped with even basic medical facilities; 
• 46% do not have purified drinking water facilities; 
• 73% of courtrooms do not have computers placed on the judges' dais with video-conferencing facilities; 
• 68% courtrooms have no separate record rooms, and, 
• 49% of court complexes have no library.

The states need to focus on the mandate of accessibility in judicial buildings and forums so that not just physical access to amenitiess but websites, filing and pleadings, procedures, litigation could also becomee accessible to people with disabilities- whether as a judicial officer, lawyer, prosecutor, staff, litigant, witness or victim. Access to justice needs to be enssured through a coordinated effort. The Court infrastructure has its unique requirements as the hospital infrastracuture has and the public works departments or the architects, contractors and builders that are engaged for making these provisions needs to have an understanding of accessibility. Similarly the ICT infrastructure reqired at the judicial forums is also equally important that it conforms to the WCAG standards and the accessibility standards on Information and Communication Technology- for which the directions have been passed by the E-Committeee of the Supreme Court to all the High Courts of the Country. It is time to practice inclusion for real inclusion to happen. 

Related article: Times of India 

Supreme Court- FTII should make reasonable accommodation in their curriculum for candidates with colour blindness in all courses.

Court: Supreme Court of India 

Bench: Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice MM Sunresh.

Case No: Civil Appeal No. 7719 of 2021

Case Title: Ashutosh Kumar Vs. The Film and Television  Institute of India & Anr. 

Date of Judgement: 12 April 2022

Brief:

Films and Television Institute of India - Majority view of the Committee appointed by SC accepted - Individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals - FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. (Para 26-35)

A Supreme Court bench directed the Film and Television Institute of India(FTII) to allow color blind candidates to take admission in all its courses. Court further mooted a proposal to make subjects that may not inclusive for such students to be made optional.

In December 2021, Ashutosh Kumar, a 35-year-old man approached the Supreme Court after being barred by the institute because he is color blind. The institute had put forth the logic that he may not be able to pass in certain subjects.

then directed the creation of a panel of experts comprising 

The top court had, instead of taking a call itself on whether colour blindness would be an aspect which would be an impediment in going through the course, it formed a committee of experts consisting of  an ophthalmologist, a film director, a film editor, a script supervisor, a head of the department from FTII, and a lawyer to analyze whether students with color blindness can be allowed to pursue a course in FTII,  to look into the issue and to facilitate a more comprehensive exercise by the Committee to opine on the aspect of colour blindness qua all the courses for which it is perceived as a disqualification. The court framed the two issues on which the opinion of the members was sought as under: 

“i. Whether the course curriculum provided for diploma in Editing can be successfully completed by the appellant who suffers from color blindness? 

Committee’s recommendations: The appellant Mr. Ashutosh Kumar who has Red and Green color vision deficiency and has color perception of CP4, as per the AIIMS Medical Board report, will have difficulty in completing the existing course curriculum of the diploma in Film and Editing course offered by the FTII. This is more particularly due to a twenty-minute ‘color grading module’ which is part of the Film Editing curriculum. However, the color grading module has no relevance to either the film editing course or to the film editor’s professional role (Mr. K. Rajasekaran, HoD Editing, FTII, does not agree that the color grading module is irrelevant to the film editing course). 

ii. To facilitate a more comprehensive exercise, the role of the committee would be to opine on the aspect of color blindness qua all the courses for which it is perceived as a disqualification.”

Committee’s recommendation: It is the opinion of the committee that :

i. It is recommended that individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals. Any limitation can be overcome by an assistant in educational and professional life.

ii. FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. For example, by providing elective/optional modules in the curriculum for those core credits which may require intensive color appreciation or in any other way. 

iii. The color grading module in the existing Diploma in Film Editing Course curriculum, should either be excluded or made elective, thereby lifting the bar of admissions for individuals with color blindness.” 

Court analyzed the report filed by the panel of experts, all of whom except one had recommended that FTII should admit students with color blindness as stressing that “filmmaking is a collaborative art and shortfalls can be addressed by having assistance while making the film.”

In particular, the committee expressed that individuals with colour blindness should be permitted to enroll for all courses offered by the FTII with the following reasoning:-

(a) Film and television creations are collaborative art forms. Restricting entry of colour blind candidates to film courses may sacrifice creative talent and stultify the development of the art. Inclusivity enriches this creative art form by introducing variety, any limitation can be overcome by assistance in the educational and professional life. 

(b) It is not the role of FTII to decide for candidates their future prospects as a film/television professional. If learning limitation of the candidate can be overcome by making reasonable accommodation or with the help of an assistant, the candidate should be eligible for admission to courses offered by FTII. 

(c) Film editing is the art, technique and practice of assembling shots into a coherent sequence and the job of an Editor is not simply to mechanically put piece of a film together, cut off film slates or edit dialogue scenes. The Film Editor must creatively work with the layers of images, story, dialogue, music, pacing as well as the actors performances to effectively “reimagine” and even re-write the film to craft a cohesive whole.

Court while agreeing with their view noted that “We find ourselves with majority view of committee. Same to be adopted by FTII in its curriculum. It does not impede on their freedom but gives them a broader canvas in pioneering effort.”

Court further noted that FTII as a premier institute can put reasonable accommodation like other global institutes from whom the panel of experts sought an opinion.

it was subitted that applicant was not permitted to take up the course despite having completed six months of the course. He submitted that though he is willing to waive the first six months and start afresh again he should not have to go through the admission process again after a medical officer had cleared his eye examination.

Furthermore, counsel for the FTII submitted that it would be a difficult task to modify the entire course as the field is of technical nature and in some courses visually impaired are specifically limited from being able to pursue it.

Court on hearing the submission granted two weeks time for the institute to file its reply on this aspect and adjourned the matter to May 10. Sussequently the FTTI agreed to keep an additiona seat and grant admission to the petitioner in the session starting in March 2023 as prayed.

Access the judgement below:

Madras HC | M. Sameeha Barvin Vs. Govt. of India (Min. of Youth and Sports)

Court:         Madras High Court

Bench:         Justice R Mahadevan

Case Title:  M. Sameeha Barvin Vs.  Govt. of India (Min. of Youth and Sports) and Four Others

Case No.      Writ Petition No. 16953 of 2021

Date of Judgement : 20 December  2021

-----------

Brief Case

“Disabled women struggle with both the oppression of being women in male dominated societies and the oppression of being disabled in societies dominated by the able-bodied”  - Susan Wendell

This explains the tribulations faced by the petitioner, who finds it impossible to speak or listen, but able to achieve gold and silver medals in long jump and high jump at the State and National levels, having been denied the opportunity of participation in the Fourth World Deaf Athletics Championship, 2021, held at Lublin, Poland and being able to participate in the same only on the strength of the interim order dated 13.08.2021, on knocking the doors of this Court.

The 18-year-old M. Sameeha Barvin had moved the court alleging gender discrimination after AISCD refused to select her despite a good performance in the trials. In her petition, Sameeha said that of the 12 athletes who had participated, 10 were men and two women and she had finished first in the latter category. On seeking to know why she wasn’t selected, it was disclosed that the selection authorities were against sending a lone female member to the event. The athlete, who has 90 per cent hearing impairment, said this amounts to gender discrimination.

Justice R Mahadevan who investigated the issue said Sameeha’s effort can’t be ignored. “Even going by the past records of the petitioner, she had won 11 gold medals, one silver and one bronze in various state and national events. This achievement of the petitioner cannot be simply brushed aside,” he said. Furthermore, he stated that no female athletes were selected, and Barwin deserves to take part in the championship. 

“Admittedly, out of the five selected athletes, none of the female athlete were selected. In the female category, it was the petitioner who stood first and therefore, in all fairness, the petitioner ought to have been selected by the respondents so that she could bring laurels to the country by participating in the 4th World Deaf Athletics Championship,” the court said.

Interim order: 

The Madras High Court single bench had earlier issued an interim order directing the All India Sports Council of the Deaf (AISCD) to permit 18-year-old athlete Sameeha Barwin to participate in the World Deaf Athletics Championship to be held at Lublin, Poland from August 23-28,2021. The representative of the Ministry of Youth and Sports had said the ministry will abide by the court’s decision. 

The Final Order:

After the detailed analysis and findings, the Court  reached the conclusion that this was a case of discrimination based on the gender as well as the disability, due to which, the petitioner  faced several difficulties and barriers to participate in the international event. The State and Central Governments, being the competent authorities to provide and ensure support and safety to the sports women with disabilities, so as to inspire their confidence freely and take part actively in the events at all levels, have failed to do the same in an appropriate manner. 

Therefore, in exercise of the power  conferred under Article 226 of the Constitution of India, to render substantial justice, this court issues the following directions to the respondent authorities for the purpose of streamlining the policy qua woman athletes with disabilities, in consultation with experts, so as to enable them to participate in all the events at State, National and International levels, with equality and dignity:

(i)    to prevent or prohibit unfair discrimination against the women athletes with disabilities, on one or more grounds including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(ii)    to provide adequate financial assistance and all other requisites to the women athletes with disabilities, so as to participate in all the events.

(iii)    to follow proper selection process, so as to enable the meritorious candidates to participate in the events.

(iv)    To provide necessary training and free medical facilities to all the women athletes with disabilities, who achieve meritorious level in the respective sports for participation in all the international games.

(v)    to provide all possible means to entertain women athletes with disabilities to utilise their fullest potentials and capabilities so as to achieve success in all the events.

(vi)    to provide all the disabled friendly materials, clothes, prosthetics and other accessories that may be required by the women athletes with disabilities in day today affairs, with incentives so as to encourage and nurture their excellence in the respective sports and to participate in the events at all levels.

(vii)    to extend the financial assistance to one of the family members, who accompany the disabled female athletes to participate in the international games. 

(viii)    To give effect to the principle of reasonable accommodation by providing all assistance that are required / requested by the females athletes with disabilities so as to enable them to participate in the international games, on par with males.

(ix)    to ensure safety and security of the female athletes with disabilities during their travel, irrespective of number of participants, so as to inspire their confidence freely and take part actively in the events at all levels.

(x )    to sensitize the male counter parts and inculcate the sense of equality in their mind, so as to maintain safe environment for women athletes at all levels.

(xi)    to reward all the disabled women participants in the international games, irrespective of their achievements or otherwise.

(xii)    Must ensure that all the women athletes whether with or without disabilities, be given equal treatment on par with males, so as to enjoy full and equal rights and freedoms and to maintain their dignity.

Read the Court Order embedded below:

Supreme Court | Ravinder Kumar Dhariwal Vs. Union of India | Civil Appeal No. 6924 of 2021 | 17 Dec 2021

Court: Supreme Court of India

Bench: Dr Dhananjaya Y Chandrachud, J. Surya Kant, J. and Vikram Nath, J.

Case title : Ravinder Kumar Dhariwal Vs. Union of India

Case No.: Civil Appeal No.6924 of 2021

Authored by: Dr Dhananjaya Y Chandrachud

Date of Judgement: 17 December 2021

Temporary Disability Certificate subsumes the requirement of " long- term impairment", hence eligible to reservation in education under section 32 of RPWD Act.

Court:  Delhi High Court

Bench: Hon'ble Mr. Justice Prateek Jalan

Case title: Anmol Kumar Mishra (Minor) vs Union Of India And Ors 

Date of Judgement: 29 November, 2021

               

                            *     IN THE HIGH COURT OF DELHI AT NEW DELHI

                           +        W.P.(C) 13146/2021 with CM APPL. 41448/2021

             ANMOL KUMAR MISHRA (MINOR)         ..... Petitioner                                            

                                                         versus

            UNION OF INDIA AND ORS                        ..... Respondents

                    CORAM:

                    HON'BLE MR. JUSTICE PRATEEK JALAN

 JUDGMENT

PRATEEK JALAN, J. (Oral) The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].

1. Notice in the present petition was issued on 23.11.2021. Mr. Arjun Mitra, learned counsel for the respondent Nos. 2 and 3-Indian Institute of Technology ["IIT"], Kharagpur and Joint Seat Allocation Authority (JoSAA) 2021 respectively, has taken instructions and submits that no counter affidavit is required. The petition can, therefore, be decided on the documents on record, and is taken up for hearing with the consent of learned counsel for the parties.

2. The petitioner seeks admission to IIT, Kharagpur for the Electronics and Electrical Communication Engineering Dual Degree (B.Tech. plus M.Tech.) course. He suffers from a condition of visual impairment called keratoconus, and applied for admission in the category of Persons with Disability ["PwD"]. He was admitted to the course of his choice pursuant to the Joint Entrance Examination ["JEE"] conducted by the respondents. However, his admission was cancelled, as reflected on the admissions portal on 31.10.2021, and communicated to him by a communication dated 09.11.2021. The reason stated for the rejection of his candidature is that the disability certificate submitted by him mentions that his disability is temporary and "likely to improve".

Facts

3. The factual position is undisputed. The petitioner suffers from keratoconus, and originally submitted a disability certificate dated 14.01.2021, issued by the Issuing Medical Authority, South West, Delhi, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India. The certificate records that he has a 40% temporary disability in relation to both eyes as per the guidelines for assessing the extent of specified disability under the Rights of Persons with Disabilities Act, 2016 dated 04.01.2018 ["the Guidelines"] issued by the Government of India. The certificate is stated to be valid for one year, i.e. until 14.01.2022.

4. The petitioner was unsure of whether he satisfies the eligibility criteria of the PwD category and, therefore, addressed an email dated 21.04.2021 to each of the IITs. He mentioned in the said email that he has a certificate from a government hospital to the effect that he has 40% temporary disability under the "low vision" category, and that the certificate is valid for one year after which he has to re-check his disability and would be given a permanent disability certificate at that stage, if he qualifies. IIT, Kharagpur is the organizing institution for the JEE (Advanced) this year. The JEE office in IIT, Kharagpur informed the petitioner by an email dated 22.04.2021 that he is eligible to get a seat under the PwD category, subject to a valid PwD certificate and other eligibility criteria. He was asked to submit a PwD certificate with 40% disability in Form-II of the brochure of the JEE (Advanced) 2 21 ["the brochure"]. An email received from IIT, Bombay has also been placed on record, which shows that the petitioner was told that he was eligible under the PwD category, subject to submission of a valid PwD certificate. However, in this email, he was directed to submit a certificate in Form-IV.

5. The petitioner was allotted a seat in the PwD category in the course of his choice and opted to "freeze his choice", rather than to be considered for upgradation in subsequent rounds of allotment. He was required to have his PwD status verified, which was done at IIT, Kharagpur on 21.10.2021. An endorsement was made on his PwD category certificate, which reads as follows: -

"Documents verified. Temporary disability of 40% (Forty percent) due to low vision due to B/L Keratoconus which valid upto 14.01.2022."

This was also reflected in the status on the admissions portal.

6. The petitioner was thereafter asked to submit the certificate in Form-IV, which he obtained from DDU Hospital, Harinagar, New Delhi on 03.09.2021. The certificate was issued on the basis of the earlier disability certificate. It bears the same number as the original, and states that it is valid until 14.01.2022. A physical copy of the Form-IV certificate has been handed over in Court. It is an undisputed document and is taken on record. As with the original certificate dated 14.01.2021, it certifies that the petitioner suffers from a temporary disability of 40% in both eyes. In this certificate, however, it has also been mentioned that the petitioner's condition is "likely to improve", and it is on this basis that his candidature has ultimately been rejected. 

Submissions

7. Mr. Md. Nizamuddin Pasha, learned counsel for the petitioner, submits that Clause 19.2 of the Guidelines specifically permits a temporary certificate if the condition is likely to worsen, and also for specific purposes, such as for pursuing education. He points out that a temporary certificate in cases of keratoconus is expressly contemplated. Mr. Pasha submits that neither the brochure published for this purpose, nor the Act makes a distinction between permanent and temporary disability. To the extent that the definition of "person with disability" in Section 2(s) of the Act itself contemplates a long- term impairment, the issuance of the certificate itself shows that the petitioner was suffering from a long-term impairment.

8. Mr. Pasha also submits that another candidate with a temporary disability has, in fact, been admitted to an engineering course on the basis of the same JEE examination. He has placed on record the certificate of the candidate in question (Anexure P-5 to the writ  petition) and the provisional seat allotment certificate issued to him (Anexure P-21 to the writ petition).

9. Mr. Mitra, on the contrary, submits that Clause 19.2 requires a disability be permanent to be certified. Mr. Mitra's contention is that the certificate dated 03.09.2021 finally submitted by the petitioner certified that his condition is likely to improve, and he was, therefore, not entitled to the benefit of reservation.

Analysis

10. The right of PwD candidates to secure reservation in higher educational institutions is provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 ["the Act"]. The reservation is in respect of persons with benchmark disabilities ["PwBD"]. This term is defined in Section 2(r) of the Act. Where the specified disability is defined in measurable terms, it includes a person with not less than 40% of the specified disability. The term "specified disability" refers to disabilities mentioned in the Schedule to the Act. The Schedule to the Act, as far as visual impairment is concerned, includes persons with "low vision", into which category the petitioner admittedly falls.

11. The Ministry of Social Justice and Empowerment, Government of India has issued the Guidelines vide notification dated 04.01.2018 for evaluation and certification of specified disabilities. The Guidelines relate to various disabilities, including visual impairment. As far as visual impairment is concerned, the nature of the certification is provided for in Clause 19.2, and the assessment of impairment is provided in Clause 19.3. Clause 19.2 reads as follows: -

"19.2. Nature of Certificate: The medical authority will decide whether disability certificate should be temporary or permanent. The disability shall be permanent to be certified. The certificate can be temporary if condition is likely to worsen and also for specific purposes such as for pursuing education. The need of reassessment, if required, should be clearly mentioned in the certificate with time frame. In certain cases such as keratoconus, developmental defects, operated congenital cataract with corneal decompensation, operated congenital glaucoma with hazy cornea etc., the patient especially can be issued a temporary certificate."  (Emphasis supplied.)

12. In the light of the provisions of the Act, and particularly the Guidelines, I am of the view that the petitioner's case is merited. It may be noted that in the Act, the definition of "PwDs", "PwBDs" and of "specified disability" do not ex facie distinguish between temporary and permanent disabilities. The definition of PwD, to the extent that it incorporates the necessity of long-term impairment, itself subsumes this requirement. The petitioner is undisputedly a PwBD whose certificate mentions that his impairment is to the extent of 40%. The Schedule of the Act, while enumerating specified disabilities, also does not make a distinction between permanent and temporary impairment in the context of visual impairment. In contrast, while dealing with "speech and language disability" in paragraph 1D of the Schedule to the Act, it is specifically mentioned that the disability arising out of conditions such as laryngectomy or aphasia affecting one or more components of speech and language due to organic or neurological causes must be permanent. In the absence of similar phraseology in paragraph 1B, which deals with visual impairment, no such condition can be read into the Act. 

13. The Guidelines also recognize keratoconus as a condition in which a temporary certificate may be given. The general rule under Clause 19.2 is that a disability would be certified if it is permanent. However, temporary certificates are expressly contemplated if the condition is likely to worsen, and also for specific purposes, such as for pursuing education. This case falls within the second category.

14. The petitioner placed the entire matter before the IITs by way of correspondence prior to filling up his form or taking the JEE. He was advised that he was eligible under the PwD category, subject to a valid PwD certificate and other eligibility criteria. The validity of his certificate is not in issue. What is now being raised is that a temporary disability is a disqualification to avail of the reservation. The fact that the petitioner's disability was temporary and his certificate was valid only for a period of one year was disclosed by him in his correspondence. The position taken by the respondents in their response to his emails is, in my view, consistent with the Act and the Guidelines. To the contrary, the contention in the impugned communication dated 09.11.2021 is that he is not eligible for the very reason that he had disclosed to the respondents.

15. This is an unduly restrictive interpretation. The Act is a beneficial legislation. While dealing with an earlier legislation on the same subject, the Supreme Court observed that the said Act was a social legislation for the benefit of PwDs and must be interpreted in order to fulfill its objectives3. The principle that beneficial legislations must be construed liberally with the objective of furthering their purpose is well settled4, and the same understanding must inform the interpretation of the Act. I am of the view that the impugned communication tends to adopt a restrictive interpretation which is not consistent with the object of the legislation. Of course, the benefits of the Act should be conferred upon those the legislature intended to be benefitted, but the Act does not make the distinction which the respondents have read into the legislative scheme.

16. Mr. Mitra submits that the case of a similar candidate with a temporary disability who was granted admission, is not a case of admission to IITs, but to one of the other institutions for which admissions are granted pursuant to the JEE (Mains) and not the JEE (Advanced). I am of the view that this distinction is of little relevance as the scheme of the reservation is similar.

Conclusion

17. For the aforesaid reasons, the writ petition succeeds, and the impugned communication of the respondents dated 09.11.2021 is quashed. The respondents are directed to take necessary consequential steps forthwith. There will be no order as to costs.

18. The pending application also stands disposed of.

PRATEEK JALAN, J.

NOVEMBER 29, 2021 

References: 

• The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 
• Union of India vs. National Federation of the Blind (2013) 10 SCC 772 [paragraph 37] 
• Reference may be made in this connection to two recent judgments of the Supreme Court: DDA vs. Virender Lal Bahri (2020) 15 SCC 328 dealing with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Brahampal vs. National Insurance Co. (2021) 6 SCC 512 dealing with the Motor Vehicles Act, 1988.