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 03^rd 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

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC

Dear Colleagues,

While we all agree that each medical history and document is confidential and carries sensitive information about the patient undergoing treatment and can not be revealed to a third person. However, by simple logic that its my treatment process, I have full right to know about it! How can I be denied of my right to access my own treatment document?

We have had several examples where persons were forcefully admitted in to mental institutions since their spouses or  family members observed certain "symptoms" and the patient never came out since there exist no process that can be initiated by the patient himself even if he is all right. Such methods have often been put to (mis)use by husbands against the wives to settle matrimonial cases and in many other cases, by other family members to grab the control on the property of the victim.

In the instant case before the Delhi High Court, the High Court has overruled the decision of the Central Information Commission that had directed the hospital IHBAS to provide the info to the patient. The judiciary need to be more sensitive and aware of the rights of persons with disabilities given India's commitment to UNCRPD and the regime of  right to information besides the Indian Constitution that assures to all citizens equality before law. The document related to medical (psychiatric) treatment must be provided to the patient.  Could they have done same with a heart patient or a kidney patient?

While the hospital may refuse husband or other family members citing confidentiality, the patient has the first right to access her treatment documents and she has a right to second medical opinion on the basis of the treatment record. Its not the property of the hospital!

Here is the news from Indian Express.

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC
Pritha Chatterjee : New Delhi, Tue Apr 24 2012, 


Do psychiatry patients have the right to access records of their treatment? While the Central Information Commission (CIC) directed a mental health hospital to provide this information to a patient, the hospital has moved court citing confidentiality.

The Delhi High Court has given the Institute of Human Behaviour and Allied Sciences (IHBAS) a stay order against disclosing the information till the next hearing in September.

The case pertains to a 32-year-old married woman. She was admitted to IHABS in April 2011 by the hospital’s mobile health unit from her Gurgaon home, after her husband approached hospital with her “symptoms”.

According to Dr Nimesh Desai, director of IHBAS, “Confidentiality of psychiatric information — which includes all information disclosed by different parties related to the patient for treatment purposes — is a very fundamental concept. It is something every psychiatrist promises his interviewees verbally. Unfortunately, till date, India does not have a legal provision regarding this. The unique nature of this information — which includes historical information of the patient, his or her recollections, fantasies, feelings, fears and preoccupations from the past as well as in the present — distinguishes it from other medical records.”

The patient was discharged after four days and has since been staying with her mother in Bhopal. After her discharge, she filed an RTI seeking “the basis for my admission, doctor’s observation, and clinical examination reports, and doctor’s observation...”

Meanwhile, the patient’s husband, too, filed an RTI application, seeking the reasons of his wife’s discharge, “without my information.”

In both cases, IHBAS authorities stated that “the information sought was provided by the patient and her husband, which is sensitive/confidential in nature.”

“The need for discretion in disclosing psychiatric information is compounded in cases like this, where there is a possible marital discord and each seeks such history to use against the other,” Dr Desai said.

The December 2011 CIC order by Information Commissioner Shailesh Gandhi stated that while the hospital was exempted from disclosing treatment records to anyone other than the patient, “these precedents are not relevant when the information is being sought by the patient herself”.

Arguing against this, in their writ before the High Court, IHBAS said, “that every party disclosed information in confidentiality to the psychiatrist and the hospital should not give it away to anyone, including the patient.”

The disclosure of information contained in psychiatry case records would discourage the patients and their relatives to furnish personal and sensitive information and they would prefer to withhold such information, which would largely affect the treatment,” the writ stated.

Meanwhile, the patient’s family said they were “exploring legal options, on this violation of the CIC order.”

Source: Indian Express

Delhi High Court- Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled [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.

The judgement 

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.

• Download the Vikas Gupta Vs. UOI judgement [PDF 381 KB]  
• For copy of the interim notification raising the maximum insurance amount to Rs. 5 lakh, [word file] 

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

New York's Taxi of Tomorrow faces Accessibility Lawsuit

    Dear Colleagues,

The Nissan NV200 taxi van showcased
during the 2012 New York International Auto Show
at the Javits Center in New York, April 4, 2012

The Green Highway

Taxi of Tomorrow faces lawsuits of the day after

a report by  MICHAEL VAUGHAN in  Globe and Mail Update;  Published Tuesday, Apr. 10, 2012 2:07PM.

The New York Auto Show, which winds up this weekend, featured the debut of New York’s Taxi of Tomorrow; and, of course, being New York, it was not without controversy.

After a multi-year selection process, the New York City Taxi and Limousine Commission (TLC) decided to go with a version of Nissan’s smallest commercial van, the NV200 Taxi, as the next generation taxi for the Big Apple. Manhattan has the lowest per capita car ownership rate in the United States and has 600,000 daily taxi users. There are about 13,000 cabs in the city.

The Nissan has lots of advantages over the old Ford Crown Victoria, which is being phased out. Fuel economy and passenger comfort are high on the list. The Nissan has an efficient four-cylinder engine, dual sliding doors, a large glass sun roof and is roomy and comfortable. As an afterthought, Nissan has come up with a version that adds a ramp at the rear of the vehicle which, along with the removal of the rear seat, would allow wheelchair access.

That’s where the problem arises. Accessibility advocates argue that the entire taxi fleet should be useable by riders with wheelchairs and lawsuits are being prepared claiming that the Taxi of Tomorrow won’t meet the legal requirements for a fully accessible taxi system previously announced by New York’s governor and the state legislature. A federal judge also has ordered the TLC to come up with a plan for better access for wheelchair users.

The issue at hand applies here, too. The Accessibility for Ontarians with Disabilities Act is going to require massive changes in making transportation services accessible. This includes public transit and taxis. One in seven people in Ontario has a disability, according to the provincial government, and that number will rise as the population ages.

Ontario municipalities are now required to determine the proportion of accessible taxis needed in their communities. In Toronto, it is expected that up to 20 per cent of all taxis will be required to be wheelchair-accessible with a built-in ramp; that could be up to 1,200 vehicles. Presently, there are a handful of converted minivans trying to do the job.

The Nissan NV200 Taxi (about $30,000 U.S. each) was given a gala launch by Nissan CEO Carlos Ghosn and New York Mayor Michael Bloomberg. The taxi also occupies centre stage at the Nissan stand on the main floor of the auto show. However, in the basement of the convention centre is a small display that is attracting lots of attention.

It’s the MV1. MV means Mobility Vehicle (about $40,000 U.S. each) and this is the first vehicle that was designed from the ground up for wheelchair accessibility. It’s a massive 5.2 metres long, weighs more than 2,200 kg, is V-8-powered and has a built-in ramp sloping gently up to a wide, tall door on the sidewalk-side of the vehicle. The MV1 can easily accommodate a wheelchair and even a mobility scooter..........................................................

For detailed news please visit the source of the news : The Globe and Mail 

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

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

Motor Vehicle Act 1988 doesn't prohibit PH to convert motor vehicles as invalid carriages

Dear Colleagues,

I had written in detailed earlier in my post titled  "Disabled and Driving - Can both exist together or at the cost of each other? about this issue and host of other issues troubling the disabled persons in India.

An adapted /altered Scooters or an adapted Car with suitable modification like hand brakes and gears provides an easy mobility to a user with orthopedic disabilities.

People with orthopedic disabilities (especially those with Post Polio Residual Paralysis and those with spinal injuries) often prefer a scooter with side-wheels which is an economic mode of transport. Since almost no major company produces such scooters (called an invalid carriage!!!) in India, people with disabilities have to get the fabrication done through local mechanics and fabricators etc.

Registration of modified car/scooter as "invalid carriage" is most difficult
Registering such vehicles and driving license to drive such (invalid carriage) is an uphill task as the rules and law do not specifically provide for this and leaves room for subjectivity and corrupt practices and it leads to exploitation of a user with disabilities at the hands of middlemen and RTOs.

Such an adapted vehicle is registered as ‘Invalid Carriage’ at the whims and fancies of the RTO. To harass the disabled applicants, the RTO often ask the user to produce a sale letter (form 21) of the Invalid Carriage. Now, since no automobile manufacturer in India supply company-fitted scooter with side wheels or produces an invalid carriage, such a sale letter can not be produced. Here starts the harassment to the user and malpractices in absence of laws due to subjectivity available with the RTOs.

Even when the carriage is registered, the user is given a driving license denoting the vehicle number on the license meaning that the user can not drive any other similar vehicle in case the vehicle goes out of order. This necessitates seeking a new driving license each time with a new vehicle (even if the vehicle is similar),

As per the Rule 126 made under Section 52 of the Motor Vehicles Act, 1988 (as amended in 2002) the prototypes of all vehicles including the one for the disabled should be approved by the Pune-based Automobile Research Association of India, otherwise no modifications on any vehicle can be permitted and one has to use a vehicle in the same shape and design as supplied by the manufacturing company. This puts an undue restriction on the persons with disabilities and takes away from them their right to free mobility.

Similar is the case for adapted Cars. Previously, Maruti Udyog Ltd. used to manufacture special type vehicles for handicapped persons with suitable modifications/ attachments. As the requirement of different persons with different disability varies, the modifications/attachments also have to be different. Since the prototype of each model has to undergo the test, under Rule 126 of CMV Rules, the manufacturer has stopped production of such vehicles. Hence it is desirable to allow modifications/alterations of vehicles enabling the handicapped to drive their own vehicles.

In such situations, several of our physically disabled friends who have been using their adapted / modified vehicles for their mobility and living a very active life despite their disability have faced harrassment from the RTOs.

Madras High Court provides a Ray of Hope
However, in the instant case, one C. Paulraj, a disabled farmer who modified a Maruti 800 to suit his needs was refused the registration of the vehicle as "invalid carriage" by the Local RTO. Paulraj had converted leg operated brake, clutch etc to hand operated ones since he can't use his legs for the purpose due to polio.

Justice D Hariparanthaman of Madras High Court has ordered that Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

The Honb'ble Justice clarified that changing the leg operated brake, clutch and accelerator into one of hand operation, would not cause a change in the basic feature of the vehicle and asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

This is a welcome judgement from the High Court and I am sure this would give much needed relief who suffer in silence due to car makers not providing these options in their designs and they are forced to go to local fabricators to get the modifications done.

Here is the news report:

HC raps transport dept for not certifying disabled man’s car

CHENNAI: It is the state's responsibility to make available 'invalid carriages' for the benefit of the disabled, the Madras high court has said, adding that curtailing the mobility of a disabled would amount to perpetuating inequality.

While directing the authorities to issue registration certificate to C Paulraj, a disabled farmer who modified his Maruti 800 to suit his needs, Justice D Hariparanthaman said, "If the mobility of physically-challenged persons is curtailed, it would result in perpetuating inequality and the object of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 would be defeated."

The matter relates to the rejection of Paulraj's request to the regional transport officer of Tirunelveli seeking registration certificate for his new car. Paulrak is paralysed below his hip. He had earlier an autorickshaw modified and duly certified. He then purchased a car, which was also modified and duly certified. The problem arose when the RTO refused to certify his new car, on the grounds that only company-manufactured vehicles, and not modified versions, could be certified.

Justice Hariparanthaman, rejecting the submission, said that the Motor Vehicles Act 1988 did not prohibit any person, including physically challenged persons, to convert motor vehicles as invalid carriages, so long as the alterations do not change the basic feature of the vehicle.

Pointing out that Paulraj had changed the leg operated brake, clutch and accelerator into one of hand operation, the judge said such changes would not cause a change in the basic feature of the vehicle. He then asked the RTO to issue permanent registration to Paulraj's vehicle within four weeks.

Need of standardizing the norms of child care institutions across sector

Dear Colleagues,

There are several institutions in the country that provide institutional care to children in crisis and those who need support. A large number of such institution provide services to children with disabilities. Many of these institutional may not be registered at all and many of these are registered under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. There are several that are run by religious and charitable organisations and are not registered under any law.

We have several laws that regulate or register institutions/societies providing such service. An institution can be registered as a  society, trust, non-profit company under Societies Registration Act, Indian Trust Act or under some of the State Acts dealing with Registration of Charitable institutions/trust or under the Indian Companies Act. It may also be just an unregistered organisation providing such a service. There is no binding single law that provides clarity on proper regulations of such institutions. Children in need are children, but we have actually divided them in to so many categories to be dealt by so many agencies- a disabled child by ministry of social justice, a tribal child under the Ministry of Tribal Welfare - just to name a few. Similarly there are multiple laws like Women and Children Institutions (Licensing) Act, 1956 and the new JJ Act 2000 that also deal with registration and regulation of Institutions, The persons with disabilities Act 1995 also provides for registration of institutions providing such services to children with disabilities. Then there are ones run by the Social welfare departments of the State Governments and many governed under the Ministry of Women and Child Welfare.

This has lead to a huge confusion not only among the government functionaries but also among the NGOs/Institutions about multiple registrations / recognition etc. There is no synergy or standard of rules that regulate all institutions. Thus many institutions get left out of any registrations resulting in constant new incidents of child abuse and human rights violation. Before regulating the institutions, the Government has to set its own house in order and streamline their own registration procedures by unifying the process and applying same standards to the child care institutions whether run by a particular ministry or department or registered under JJ Act or Persons with Disabilities Act. Without this, it is just not possible to account for and regulate the number of institutions that have sprung up in various parts of the country and ensure a reasonable standard of human rights.

The children are children first and thus all institutions registered under any Act/Law should follow standard common procedure and process. Registration under one law should be sufficient since it is wrong to burden the NGOs/Institutions to seek recognition and registration under multiple laws. If provisions of Juvenile Justice Act are more enabling and child rights centric lets make them the standards to be followed by all other institutions irrespective of their registration status. And let there be a single regulating agency in each state to  inspect and ensure compliance of the minimum standards in these institutions instead of "this is not under my ministry or my mandate"  psychology. We have seen this confusion in Delhi recently when incidents of child abuse were reported in Arya Orphanage.

Its never too late, I am happy that first baby steps have been taken to at least identify such institutions working across the length and breadth of the nation. Regulation can be the next step. Hope the Government has a larger perspective to ensure standardization in these institutions and if need be support those who lack resources. We can't undermine the important role being played by charitable and religious institutions and voluntary agencies in care and  development of children without any family support, though there are few black sheep as well. Need is to regulate and standardize the norms to check the abuse and neglect of children not only in institutions but also reach out through community resources to those who still haven't found a home/institution and are living in vulnerable situations on roads, pavements, etc.

The initiative by Ministry of Women and Child Development is a welcome step. Here is the news:


The Hindu : Life & Style / Society : Enhancing institutional care

Centre asks States to survey children's homes, proposes amendments to Juvenile Justice Act

Concerned over the abuse and neglect of children living in child care institutes across the country, the Ministry of Women and Child Development has asked the States to conduct a survey of all such institutions, including orphanages at the district level to ensure that these are registered as mandated under the Juvenile Justice (Care and Protection of Children) Act, 2000. The States have been asked to submit their report to the Ministry within a month.

The Centre has also proposed to amend the JJ Act to include strict penal provision for non-registration and repealing the older existing laws like the Women and Children Institutions (Licensing) Act, 1956 and Charitable Homes (Supervision and Control) Act, 1960 under which child care institutions were licensed and have so far evaded registration under the JJ Act, 2000. The State has also been asked for their views on these issues.

In a letter sent to all State governments, the Union Women and Child Development Ministry has pointed out that differently-abled children were also living in such child care institutions, many of which are also run by religious and charitable institutions, and that this should also be reviewed.

Section 34(3) of the JJ Act provides for mandatory registration of child care institutions housing children in need of care and protection with the intent of enforcing minimum standards of care for services provided to the children in these homes. The JJ Act also provides for stringent monitoring of the quality of services. “It is for this reason that this Ministry has been persistently urging the State governments and Union Territories to identify and register all child care institutions under the JJ Act. However, progress in this regard has been very slow,” Women and Child Development Ministry said in its letter to the States.

To ensure that children in child care institutions receive the best of care, and are not subject to abuse and neglect, it is imperative that all the homes running in your States housing children in need of care and protection are identified and registered under the JJ Act, the letter said.

The Ministry has also asked the States to issue public advertisements to draw the attention of all organisations running facilities for children in need of care and protection towards their obligation to register under the JJ Act. “Simultaneously, surveys may be conducted at the district level to identify such homes that are not registered and the organisation may be urged to register under the JJ Act failing which their registration, recognition or license issued under any other legislation may be withdrawn and the children shifted to any other residential homes under the JJ Act,'' the letter said.
Source: The Hindu

Himachal Pradesh High Court directs the State to find ways to provide equal opportunities for disabled in civil services

Dear Colleagues,

This petition by Mr. Shyam Singh, a disabled school teacher from Himachal Pradesh brings out the systemic inadequacies, which I am sure exists in all states, in providing equitable opportunities to persons with disabilities in their recruitment to the civil posts in the States. only 25% of the total Class- I category posts have been filled that are reserved for persons with disabilities in terms of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act- 1995.  This also indicates that no steps have been taken by the State to fill up the backlog by taking measures suggested in the DoPT Guidelines dated 29 Dec 2005 on effecting the reservation of posts for persons with disabilities.

Such an exercise in needed in most states as we continue to face situations where lack of enabling environment do not allow persons with disabilities to compete with their non-disabled counterparts. Also the state recruitment agencies, public service commissions have not thought of organizing coaching classes for preparing the students for the competitive examinations as is being done to improve representation in civil service of persons from marginalized communities such as scheduled castes / scheduled tribes. NGOs working with persons with disabilities or the self-help groups /DPOs must take up similar initiatives to create a demand for such a need of training and lowering  the selection criteria for persons with disabilities who have been suffering exclusion due to inaccessibility of educational systems as well as attitudinal barriers of the community in reaching their full potential.

Here is the news coverage from Indian Express

Work on ways to provide equal opportunities for disabled: HC - Indian Express

Alarmed that only 25 per cent of the posts reserved for the physically-challenged in Class-I category government jobs have been filled up owing to non-availability and non-suitability of candidates, the Himachal High Court on Wednesday directed the state government and Public Service Commission to work on alternatives to provide equal opportunities to the disabled.

A division bench comprising Chief Justice Kurian Joseph and Justice Dharam Chand Chaudhary said the existing mode of selection was not in a position to ensure equal opportunity to the physically-challenged. “In terms of the objectives of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act-1995, we are of the view that it is high time that the state thinks of alternate methods of selection. It should also be thought of as whether such selection should be continued with the HP Public Service Commission.

The court passed the order while disposing off an appeal filed by Shyam Singh — a physically-challenged person who works as a school teacher in Darlaghat. The petitioner, who had appeared for Public Service Commission exam under three per cent reservation, was not selected because he “lacked merit”.

“Even in selection in respect of the reserved quota, there cannot be any compromise on standard of merit as prescribed by the appointing authority. Of course, it is certainly open to the appointing authority to prescribe lesser standard, in respect of the reserved categories to achieve the objects of such reservation,” the court said

Bombay 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.  

Nagpur University challenged for discriminating against Persons with Disabilities

Dear Colleagues,

My dear friend Rajesh Asudani who works with Reserve Bank of India has moved Mumbai High Court (Nagpur Bench) against Nagpur University's open discrimination against persons with disabilities by earmarking only four posts for PH Persons that too making it "subject to availability". That indicates their intention to keep the posts unfilled and then lapse them in favour of general categories on the pretext that suitable candidates were not available! This has become the modus operandi of several Government departments which needs to change.

Here is the coverage in Times of India, Nagpur:

HC stays Nagpur University hiring over blind man's plea 


NAGPUR: A blind man has moved the high court here alleging flouting of rules by Nagpur University in appointment of lecturers. A division bench of chief justice Mohit Shah and justice Prasanna Varale, on Wednesday, stayed the entire recruitment process of the university. The court also issued notices to the respondents including UGC chairman Ved Prakash, NU vice-chancellor Vilas Sapkal and state secretary for higher and technical education, directing them to file reply within two weeks.

Rajesh Asudani (35), a meritorious candidate who aspired to be a lecturer, had argued in-person during first hearing but taking into consideration his blindness, the court appointed Ashutosh Dharmadhikari as amicus curiae to plead his case. He claimed that NU violated Persons with Disabilities (Equal opportunities, protection of rights and full participation) act, 1995, in its advertisements for recruitment of professors, associate and assistant professors. He said these advertisements provided reservation for the disabled but "subject to availability" and stated that preference would be given to physically handicapped. He added that advertisements failed to specify the exact nature of disability and were against various circulars issued by UGC, Government of Maharashtra, Ministry of Social Justice and Empowerment, and also against the settled laws established by judgments of Supreme Court and various high courts.

Asudani, working with RBI as Class-I officer, pointed out that NU had issued advertisements for lecturers' recruitment three times in five years - on July 13, 2007, March 26, 2008 and August 30, 2011. The petitioner contended that reservation of posts for disabled persons under Sections 32 and 33 were binding on all the establishments but NU disregarded them in letter and spirit while reserving only four posts for physically handicapped persons, that too making it "subject to availability". He took strong objection to this rider terming it as patently illegal and militating against the letter and spirit of law.

Asudani argued that same rider had not been placed for filling up posts for SC/ST candidates, even though some posts have been advertised numerous times. He cited examples of head of NU post graduate law department Shirish Deshpande and retired sociology lecturer Prof Lakshman Khapekar who earned distinction for their unmatched academic success despite blindness from this very university. He prayed for cancelling the advertisements and directives to NU to come up with new one with proper reservations for disabled.

Source: http://timesofindia.indiatimes.com/city/nagpur/HC-stays-Nagpur-University-hiring-over-blind-mans-plea/articleshow/12270803.cms