Delhi High Court Protects Para Athletes from Sports Federation Disputes

Court: Delhi High Court

Bench: Justice Manmohan

Case No.: W.P.(C) 6815/2016

Case Title: Karamjyoti v. Union of India & Ors.

Decided on: 11 August 2016

Neutral Citation: 2016:DHC:4198

Background

The Delhi High Court, in Karamjyoti v. Union of India & Ors., dealt with an important issue concerning the participation of persons with disabilities in national sporting events and the responsibility of the Government to ensure fair and inclusive sports governance.

The petitioner, Karamjyoti, a para athlete, approached the Court alleging that administrative disputes relating to the recognition of sports federations and lack of coordination among governmental authorities were adversely affecting the participation of athletes with disabilities in national and international competitions.

The grievance centered around the uncertainty regarding the organization of para sporting events and the recognition of the competent National Sports Federation (NSF), which had the potential to deprive athletes with disabilities of opportunities to compete and qualify for international championships.

The petitioner sought judicial intervention to ensure that disputes between sporting bodies did not prejudice the rights and careers of para athletes.

Issues Before the Court

The principal questions before the Court were:

1. Whether administrative disputes concerning recognition of sports federations could adversely affect the participation of athletes with disabilities.
2. Whether the Union Government was under an obligation to ensure uninterrupted sporting opportunities for para athletes.
3. Whether immediate directions were necessary to protect the interests of persons with disabilities participating in national sporting events.
4. Whether sports governance should prioritize athletes' rights over institutional disputes.

Key Observations of the Court

The Delhi High Court observed that persons with disabilities should not become victims of administrative or organizational disputes between sports bodies.

The Court emphasized that sporting careers are time-sensitive. Athletes train for years to participate in national and international competitions, and any delay or uncertainty in organizing events or recognizing federations could irreparably prejudice their careers.

The Bench noted that disputes regarding recognition of National Sports Federations are matters to be resolved by the competent governmental authorities. However, such disputes cannot justify depriving athletes of opportunities to compete.

The Court stressed that governmental authorities must ensure continuity in sports administration so that athletes with disabilities are able to participate in competitions, improve their rankings, and qualify for international tournaments without unnecessary disruption.

Recognizing the importance of sports as a means of empowerment and social inclusion, the Court highlighted that administrative processes should facilitate—not hinder—the participation of persons with disabilities.

Directions Issued by the Court

After considering the submissions of the parties, the Delhi High Court issued appropriate directions to safeguard the interests of para athletes.

The Court directed the concerned authorities to:

• Ensure that sporting events for persons with disabilities are conducted without interruption.
• Resolve disputes regarding recognition of sports federations expeditiously.
• Ensure that athletes are not prejudiced because of conflicts between sports organizations.
• Take necessary administrative measures so that eligible para athletes are able to participate in national and international sporting competitions.

The writ petition was disposed of with directions emphasizing the protection of athletes' interests.

Significance of the Judgment

The judgment is significant because it recognizes that sports administration must ultimately serve athletes rather than sporting institutions.

First, the Court acknowledged that delays caused by administrative disputes can seriously affect the careers of athletes with disabilities.

Secondly, the decision reinforces the obligation of the Government to ensure continuity in sports governance and prevent institutional conflicts from undermining disability rights.

Thirdly, the judgment contributes to the evolving jurisprudence recognizing sports participation as an important component of equality, dignity, and social inclusion for persons with disabilities.

Finally, the decision paved the way for subsequent reforms in the governance of para sports and highlighted the need for transparent and athlete-centric administration.

Commentary

Karamjyoti v. Union of India represents an important judicial recognition that disability rights extend beyond accessibility and employment to include meaningful participation in sporting life.

Although the dispute arose in the context of administrative recognition of sports federations, the Court correctly shifted the focus to the individuals most affected—the athletes themselves.

For para athletes, missing even a single national championship can mean losing opportunities for international qualification, sponsorship, rankings, scholarships, or career advancement. The Court's insistence that athletes should not suffer because of bureaucratic disagreements reflects a rights-based approach to sports governance.

The judgment also anticipates later developments under the Rights of Persons with Disabilities Act, 2016, particularly Section 30, which mandates Governments and sports authorities to promote effective participation of persons with disabilities in sporting activities at every level.

Viewed alongside later decisions such as Sunil Tanwar v. Union of India (2019), Virender Singh v. Union of India (2023), and Ragula Naresh Yadav v. State of Telangana (2023), this judgment forms part of the growing body of Indian jurisprudence emphasizing that persons with disabilities must receive equal opportunities, institutional support, and fair treatment in sports administration.

It serves as a reminder that the ultimate purpose of sports governance is to facilitate athletic excellence and inclusion, and that governmental authorities must ensure that administrative disputes never come at the cost of an athlete's aspirations or constitutional rights.

Read the Judgement

Karamjyoti v. Union of India & Ors. W.P.(C) 6815/2016

 

Are meritorious candidates with disabilities pushed into disability quota against the spirit of Section 33?

Dear Colleagues,

The govt. departments, who should be complying with the provisions of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 have been flouting these very provisions under different garbs. This is not a new phenomenon. I remember in April 2005, I had challenged on behalf of All India Confederation of the Blind an advertisement of Govt. of NCT of Delhi and UPSC for filling up 90 posts of Principals without giving 3% reservation for persons with disabilities. In the counter filed by the Delhi Govt. it was suggested that they will adjust all persons with disabilities against reserved quota even if they cleared on their own merit. The Hon'ble Court presided by Justice S. Ravindra Bhat then had given a categorical judgement saying this could not be allowed and issued rule. The Delhi Govt. even went in appeal through LPA No.2042, 2043 and 2044/2005, however, on 21 Dec 2005 vide a common judgement, the double bench headed by the Hon'ble Chief Justice and Justice Madam B Lokur dismissed the said appeals upholding that Article 46 of the Constitution provides that the State shall promote the interests of weaker sections and weaker section would include not just SCs and STs but also persons with disabilities. The court had dismissed the LPAs with directions that a candidate with disabilities who has qualified in the selection and whose merit is so high that if he were a general category candidate he would still have been selected, then his appointment will not be made against the quota of persons with disabilities. Such a candidate would be treated as if in the general category and the reserved seats of the disabled category will be calculated excluding him or be filled up accordingly.

In fact, this fact has been repeatedly held by the Hon'ble Supreme Court that concessions to help / enable a candidate appear in examinations cannot be termed as “reservation benefits“ if she/he qualifies on merit. [PGI Medical Education and Research V. K.L. Narasimham, (1997) 6 SCC 283]

The trend of subverting the laws against the marginalized section continues to be pushed by many employing departments rendering the minimum reservations as maximum reservations. As simple as age relaxations, fee relaxations, lower threshold of qualifying marks and additionally in case of disabled candidates - using a scribe or availing compensatory time during examination is being used as the basis to classify them as "reserved candidates". Using a scribe or compensatory time or fee/ age /qualifying marks relaxation can at best be considered as enabling provisions. These provisions can not be used to push them in to the "reservation quota" thereby defeating the original intent of such beneficial legislation.

The National Commission for SCs is examining this issue and has issued notice to UPSC, DoPT etc. on receipt of complaints from the stakeholders. The Commissioner for Persons with Disabilities on the other hand, has not taken any suo moto notice of several such cases happening right under their nose. This is an alarming situation where the statutory bodies are lagging behind in restoring justice to the most marginalized and have failed to protect their rights and equal participation in the spirit of the Persons with Disabilities Act 1995.

Kerala HC: Tax Exemption on Vehicle for disabled is financial privilege different from a Right [Judgement Included]

Dear Colleagues,

A double bench of the Kerala High Court has ruled that a cap on tax exemption on purchase value of vehicles by persons with disabilities can not be termed as discriminatory. The division bench comprising of Justice Antony Dominic and Justice Dama Seshadri Naidu opined  that the exemption made by the Government in the instant case, was in the nature of concession to persons with disabilities. And this exemption being a part of financial incentive, the Government was well within its powers to impose suitable conditions.

Brief Brackground  of the case

The Government, had by a notification, G.O. (MS) No. 16/98/Tran., dated 31.03.1998, granted a tax exemption for certain motor vehicles, including the luxury cars, being purchased by differently abled persons. However by a subsequent amendment, the Government had imposed a limit to the cap of Rs.5,00,000/- ,on the value of such vehicles entitled to such tax exemption.

Appellant, a person with 100% disability and a wheel chair user purchased a car of a value exceeding Rs. 5,00,000/. He argued that his son was also disabled being mentally retarded, a bigger car of a value more than 5,00,000/- cap was required to manage the daily activities of the family. He contended that limiting the cap on value of vehicles entitled to tax exemption for use by disabled, violated Article 14 of the Constitution of India. 

His writ petition in this regard, before the single bench was dismissed. Aggrieved by the same, he approached the division bench in an appeal.  Dismissing the writ appeal, the division bench observed:- “Be it a classification of discrimination in terms of Article 14 of the Constitution, it applies vis-a-vis the right that has been constitutionally consecrated. In that context, legion are the precedents that the classification or discrimination shall pass the judicial muster as regards the reasonableness or non-arbitrariness.” 

Judgement

The bench opined, “In the present instance, it is only a concession the Government has conferred on physically challenged persons. It being a financial incentive, the Government is well within its powers to impose suitable conditions. In other words, a privilege being entirely different from a right, a Fundamental Right at that, we are of the opinion that the contention of the learned counsel as regards discrimination or unreasonableness does not apply.” 

Click here to read the judgement  WA.No. 1071 of 2016 IN WP(C).17895/2016 titled  Dr. C.H. Moideen Kunhi Versus Govt. of Kerala [PDF 72 KB]

Deaf witness is a competent & credible witness- High Court [Judgement Included]

Dear Colleagues,

A single bench of Hon'be Delhi High Court presided by Justice Mukta Gupta while disposing off an appeal has held that when a deaf witness is under cross-examination the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not  affect either the competence or the credibility of such witness.

In the instant appeal filed by the Accused who was convicted for the offence defined under Section 9(k), punishable under Section 10 of The Protection of Children from Sexual Offences Act, 2002, for sexually assaulting a 12 yr old deaf and dumb girl, twin arguments were raised by the counsel for appellant i.e.  firstly since the prosecutrix could not be cross-examined her testimony cannot be read in evidence  and secondly even if the offence is proved against the appellant, the same would fall under Section 7 punishable under Section 8 of POCSO Act and not under Section 9(k) punishable under Section 10 of the POCSO Act.

Section 119 of the Indian Evidence Act, 1872 provides: “119. Dumb witnesses.- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”

While dealing with the mode of recording, non-administration of oath to a deaf and dumb witness and involving an interpreter for understanding the evidence of such a witness, the Supreme Court in the decision reported as (2012) 5 SCC 789 State of Rajasthan Vs. Darshan Singh @ Darshan Lal held: “26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.

On Questioning the Testimony as no cross examination held

In reply to the first argument of questioning the testimony, Justice Mukta Gupta held as follows;

“The purpose of cross-examination is to ascertain the truth in relation to the acquisition levelled against an accused person and a discretion is vested in the Court to control the cross-examination. A party cross-examining a deaf and dumb witness like any other witness is required to act within the bounds of law and cannot be permitted to cross-examine the witness all and sundry on irrelevant questions. Section 138 of the Indian Evidence Act itself provides that the examination and cross-examination of a witness must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The purpose is that in cross-examination besides relevant facts, facts which impeach the credibility of the witness and shake his creditworthiness can also be asked. However still the first portion of Section 138 of the Evidence Act qualifies this right confining the cross-examination to relevant facts though it may not have been so deposed in the examination-in-chief. It is the duty of a Judge to control the cross-examination to prevent any abuse and to protect a witness from being unfairly dealt with. Sections 149 to 152 of the Evidence Act prohibit asking questions without reasonable grounds, which are indecent and scandalous in nature, or which are intended to insult or annoy the witness”.

“When a deaf and dumb witness is under cross-examination, the Court is required to take due care of the fact that vocabulary of such a person is limited as he or she speaks through sign language and it may not be possible for that witness to answer, or in detail explain every answer by sign language. This disability of a limited vocabulary of sign language does not affect either the competence or the credibility of such witness. The Court is required to exercise control over the cross-examination keeping in view the ability of the witness to answer the questions.

From the examination of the witness which was in question-answer form and the response to the cross-examination wherein the witness drew and explained the distance where the incident took place, it can safely be held that there was sufficient compliance of the right to cross-examination provided to an accused and the testimony of this witness is not required to be effaced”

On punishment under section 8 Sexual Assault or Section 9 Aggravated Sexual Assault 

The Court then examined the question whether appellant can be convicted for offence defined under Section 7 and punishable under Section 8 of the POCSO Act or defined under Section 9(k) and punishable under Section 10 of POCSO Act. The appellant was charged for offence defined under Section 7 and punishable under Section 8 of POCSO Act i.e. “sexual assault”.

Section 7 POCSO Act defines the term sexual assault as physical contact without penetration. The punishment for the same is provided in Section 8 wherein the minimum sentence is 3 years which may extend to 5 years with fine.

Section 9 of POCSO Act defines “aggravated sexual assault” which is punishable under Section 10 POCSO Act. Section 9 POCSO Act defines different types of sexual assault which would be termed as aggravated sexual assault. Sub-clause (k) of Section 9 POCSO Act provides that whoever, taking advantage of a child’s mental or physical disability, commits sexual assault on the child would be punished for aggravated sexual assault as per Section 10 of POCSO Act wherein the minimum punishment is of 5 years imprisonment which may extend to 7 years and fine.”

Though charged with a major offence an accused can be convicted for a minor offence, the vice-versa is impermissible.

Court altered the Punishment

Accepting the contention of the Accused, the bench held that in the facts of the case Court is not required to go into whether aggravated sexual assault is made out or not from the evidence on record, for the reason there was no charge for aggravated sexual assault framed against the appellant. “ It is trite law that though charged with a major offence an accused can be convicted for a minor offence, however the vice-versa is impermissible which has been done by the learned Trial Court.”

Consequently, the Court altered the conviction of Accused to one for offence defined under Section 7 and punishable under Section 8 of POCSO Act.

The earlier sentence dt. 17 Dec 2013  of "Rigorous imprisonment for a period of six years and fine of Rs. 5,000/- in default whereof to undergo simple imprisonment for a period of three months" has not been modified as "Rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 10,000/- in default whereof to undergo simple imprisonment for a period of one month".

Click here for the Judgement dated 03 Jun 2016, bearing No. CRL.A. 751/2014 titled Chander Singh Vs. State

Language used by Judiciary referring to persons with disability

An important takeaway from this judgement is also the issue of improper and disability unfriendly language used by the Hon'ble Judges despite their best intentions. The terminology "deaf and dumb", "suffering from disability" etc has been repeatedly used by the prosecution, courts below and the high court in the pleadings, orders and judgement. And this is not one odd case. Its high time that the judicial officers  and prosecution officers too are trained in the use of correct language / terminology while referring to persons with disabilities. While the words, "suffering from" and "handicapped" are one extreme, the term "Divyang" suggested by Hon'ble Prime Minister of India is on the other extreme of the disability etiquette. People with disabilities are persons first and therefore a simple reference to them as "a person with disability" or "a person with hearing impairment", speech impairment, etc... in line with the UNCRPD accepted worldwide is appropriate and proper. The Hon'ble High Court must consider addressing this as a priority.  

SC slaps Rs.10 lakhs fine on SpiceJet for discriminating with a flier with disability [Judgement Included]

Court: Supreme Court of India

Bench: Justice A K Sikri and Justice R K Agrawal

Case No.:  WP(C) No. 98 of 2012 

Case Title: Jeeja Ghosh and Anr Versus Union of India and Others 

Date of Judgement: 12 May 2016

Brief:

This is in continuation to our  earlier two posts titled Jeeja Ghosh, a prominent Indian disability right activist discriminated by Spicejet Pilot dated 19 Feb 2012 and Supreme Court of India issues notice to SpiceJet for deplaning disabled woman dated 05 April 2012.

In a remarkable judgement in a clear case of disability discrimination, a bench comprising Justices A K Sikri and R K Agrawal of Hon'ble Supreme Court has directed the budget airline Spicejet to pay a sum of Rs 10 Lakh (One Million Indian Rupees) as damages to a flyer living with cerebral palsy, who was forcibly offloaded in 2012, saying the manner in which she was de-boarded depicts "total lack of sensitivity".

The apex court noted that the flier with disability Ms. Jeeja Ghosh was not given "appropriate, fair and caring treatment" which she required with "due sensitivity" and the decision to de-board her was "uncalled for".

"On our finding that SpiceJet acted in a callous manner, and in the process violated Rules, 1937 and Civil Aviation Requirements (CAR), 2008 guidelines resulting in mental and physical suffering experienced by Ghosh and also unreasonable discrimination against her, we award a sum of Rs 10,00,000 as damages to be payable to her," observed the Bench.

Ms. Ghosh was offloaded from a SpiceJet flight on February 19, 2012 from Kolkata when she was going to attend a conference in Goa hosted by NGO ADAPT (Able Disable All People Together), the second petitioner in the case.

The bench said the decision to offload Ghosh was taken by the airlines without any medical advise or consideration and her condition was not such which required any assistive devices or aids.

"Even if we assume that there was some blood or froth that was noticed to be oozing out from the sides of her mouth when she was seated in the aircraft (though vehemently denied by petitioner), nobody even cared to interact with her and asked her the reason for the same. No doctor was summoned to examine her condition. Abruptly and without any justification, a decision was taken to de-board her without ascertaining as to whether her condition was such which prevented her from flying. This clearly amounts to violation of Rule 133-A of Rules, 1937 and the CAR, 2008 guidelines," the bench said.

Download the Judgement

• WP(C) No. 98/2012 Titled Jeeja Ghosh and Anr Versus Union of India and Others 
• Or Read the embedded Judgement in PDF below:

Delhi High Court Strikes Down Disability-Based Exclusion insisting 70% Disability Cap for MBBS Admissions in MBBS Admissions despite clearing NEET [Judgement Included]

Court: Delhi High Court

Bench: Justice Badar Durrez Ahmed and Justice V. Kameswar Rao

Case No.: W.P.(C) 6041/2013

Case Title: Sanjana Sinha v. University of Delhi & Anr.

Date of Judgment: 31 May 2016

Background

The present writ petition before the Delhi High Court raised significant questions concerning disability discrimination in medical education and the exclusionary eligibility standards imposed upon persons with disabilities seeking admission to MBBS courses.

The petitioner, Sanjana Sinha, had suffered amputation of her left leg in 2012 following severe medical complications during treatment procedures intended to stabilise her blood pressure. At the age of seventeen, she underwent a life-altering medical crisis which ultimately resulted in permanent locomotor disability. She was subsequently fitted with a prosthetic limb and was able to independently walk and perform daily activities without external assistance.

Despite these circumstances, the petitioner successfully completed her schooling and qualified the National Eligibility-cum-Entrance Test (NEET) examination for admission to MBBS/BDS courses for the academic session 2013–14.

Having qualified NEET, the petitioner applied for admission under the category reserved for persons with disabilities. Her disability certificate recorded 80% locomotor disability. The Medical Board at Vardhman Mahavir Medical College and Safdarjung Hospital also certified her disability at 80%.

However, her candidature was rejected on the basis of the Graduate Medical Education Regulations, 1997 framed by the Medical Council of India and the admission bulletin issued by the Faculty of Medical Sciences, University of Delhi. The impugned framework restricted eligibility under the disability quota only to candidates with locomotor disability of lower limbs between 50% and 70%, thereby excluding candidates with disability exceeding 70%.

Aggrieved by this exclusionary criterion, the petitioner approached the Court challenging:

• the amendment dated 25 March 2009 to the Graduate Medical Education Regulations, 1997;
• the Medical Council of India communication dated 21 April 2009; and
• the relevant clause in the admission bulletin issued by the Faculty of Medical Sciences, University of Delhi.

The petitioner also sought directions for admission to the MBBS course under the disability quota.

Key Observations of the Court

The Division Bench undertook a detailed constitutional examination of disability-based exclusion within professional education and questioned the legality of rigid percentage-based barriers imposed upon persons with disabilities.

At the outset, the Court recognised that welfare legislation concerning persons with disabilities must receive a purposive and beneficial interpretation to ensure that disabled persons are not denied equal opportunity merely because they do not conform to narrow physical standards.

The Bench observed:

“A welfare legislation needs to be given a purposive interpretation, inasmuch as to give benefit to a person with disability so that he/she does not feel less privileged than a normal person.”

A central issue before the Court was whether exclusion of candidates with locomotor disability exceeding 70% from MBBS admissions could withstand constitutional scrutiny.

The Court carefully examined the rationale underlying the impugned Medical Council of India regulations and found the exclusionary framework arbitrary and discriminatory. It observed that disability percentage alone cannot determine an individual’s capability to pursue medical education.

Importantly, the Court recognised that disability cannot be mechanically equated with incapacity. The Bench noted that the petitioner, despite her disability, had independently functioned with the assistance of a prosthetic limb, completed her education successfully, and qualified a highly competitive national examination.

The Court further emphasised that functional capability and individual competence must prevail over rigid medical categorisation detached from actual ability.

Rejecting stereotypical assumptions regarding disability, the Bench observed that exclusionary standards based solely on numerical disability percentages undermine constitutional guarantees of equality and dignity.

The Court also recognised the broader implications of denying persons with disabilities access to professional education. Such exclusion, the Court observed, perpetuates systemic marginalisation and reinforces barriers preventing persons with disabilities from entering professions traditionally viewed as inaccessible.

Importantly, the judgment reflected a transition away from purely medicalised understandings of disability toward a rights-based approach grounded in inclusion, capability, and substantive equality.

Relief Granted and Limitations

The Delhi High Court granted relief in favour of the petitioner and held that exclusion of candidates with disability above 70% was legally unsustainable.

The Court effectively invalidated the restrictive framework limiting eligibility solely to candidates with locomotor disability between 50% and 70%. It also directed that the petitioner’s candidature should not be rejected in future merely because her disability was assessed at 80%.

However, despite succeeding on the legal issue, the petitioner did not receive immediate admission to the MBBS course because the academic session for which she had appeared had already concluded.

The Court observed:

“At this point of time, no direction can be issued to give admission to the petitioner on the basis of the said examination. The only direction that can be given is… the respondent shall not deny admission to the petitioner if she is successful in a future NEET examination on the ground that she has a disability of 80%.”

As a consequence, the petitioner lost a crucial academic year and was required to reappear in the NEET examination despite having already qualified earlier.

The case therefore highlights a recurring concern in disability rights litigation — delayed judicial relief may ultimately deprive successful litigants of meaningful practical justice even where constitutional violations are recognised.

Commentary

The decision in Sanjana Sinha v. University of Delhi & Anr. remains an important judgment against structural ableism within professional educational institutions and significantly contributed to the evolution of disability rights jurisprudence in India.

One of the most important aspects of the ruling lies in its rejection of the assumption that higher degrees of physical disability necessarily translate into professional incompetence. By rejecting rigid percentage-based exclusions, the Court affirmed that capability must be assessed through actual functional ability rather than abstract medical classifications.

The judgment also advanced the principle of substantive equality. Formal equality would merely permit disabled candidates to apply for admission; substantive equality requires dismantling institutional barriers that prevent disabled persons from genuinely accessing educational opportunities.

Another important contribution of the ruling is its movement away from paternalistic and medically deterministic approaches toward a rights-based understanding of disability. The Court recognised that persons with disabilities are entitled to equal participation in professional education and cannot be excluded through arbitrary eligibility standards unsupported by rational justification.

At the same time, the case exposes the limitations of delayed judicial intervention - many a time not because petitioner came late but the justice was delayed. Although the petitioner ultimately succeeded in establishing that the exclusionary framework was discriminatory, she still lost an irreplaceable academic year and had to undergo the uncertainty of appearing in the entrance examination again. The larger message is that MBBS admission cannot be denied solely due to high disability percentage.

The judgment therefore serves both as a significant constitutional affirmation of disability rights and as a reminder that delayed remedies in educational matters can substantially dilute the practical value of judicial relief.

The ruling remains an important precedent affirming that disability rights jurisprudence must be guided by dignity, capability, inclusion, and substantive equality rather than by restrictive medicalised notions of limitation and incapacity.

Read the judgement

Kerala HC quashes HPCL's stipulation denying distributorship on groud of blindness [Judgement Included]

Dear Colleagues,

In a writ petition W.P.(C).No.29046/2013 titled Baby P. Versus M/s Hindustan Petroleum Corporation Limited, the Honorable Kerala High Court vide its judgement dated 30 May 2016 has quashed the stipulation that ‘totally blind person is ineligible’ for LPG distributorship as violative of Article 14 of Constitution of India.

The petitioner, P. Baby of Thiruvananthapuram, a totally blind person, applied for LPG Distributorship at Kodiyathoor in Kollam under S.C.(C.C) category. But his application was rejected by the respondent on two grounds, one of them being that a ‘totally blind person’ was ineligible to apply for LPG distributorship & the other being lack of own space for operating the agency. The petitioner had submitted that he was willing to take on rent adequate space to run the agency.

Quashing a part of the norms formulated by the petroleum company that allowed denying distributorship to persons who are completely blind, the court held that it amounts to violation of the constitutional right to equality before law and denies equal opportunity to blind persons.

In the judgment, the court said if a disability doesn't prevent a person from performing a job, such a disability cannot be the reason for denying the job. Denying a job citing disability can only be allowed if the disability prevents the person from performing the functions associated with the job. Denial of jobs citing disability becomes necessary only in special circumstances such as driving, the court said. 

The petroleum company had contended that if a blind person such as the petitioner is granted LPG distributorship, he won't be able to inspect complaints related to cylinders and that inspection of cylinders to rectify complaints is a job that requires maintenance of the highest safety standards. However, the court said those who formed the norms ousting blind persons completely from grant of distributorships are unaware of the fact that they are able to perform such tasks that require a high degree of specificity. 

Delivering the judgment, Justice Muhammed Mustaque, opined that the above stipulation of classification  was unreasonable, since it  had no nexus with the purpose sought to be achieved. The bench opined:- “The classification in the case in hand appears to have been made based on the broad generalization that the Distributorship can be run only by persons of certain abilities. Such a classification ex facie appears to be unreasonable and unsustainable. Though, the object of such prescription appears to be that in order to carry out day-to-day affairs, constant vision of the Distributors is required. The vision of eye sight, in fact, has nothing to do with the functions being discharged by the Distributors. A blind person is also endowed with a vision. Though, he cannot physically see an activity, with his insight vision he can run a Distributorship. Therefore, the object of classification must have a nexus with the purpose and intent to be achieved.

The modern technological advantages and improvement of social conditions of the blind cannot be ignored while considering the functional duties attached with Distributorship.” The court further elaborated its stand, by employing the Doctrine of strict scrutiny developed by American courts, wherein the general presumption available for a statute,  on its validity cannot be invoked for an executive action, but the onus is cast on the proponent of the classification to establish its constitutionality.

The Court thereupon proceeded, to determine the constitutionality of the stipulation and whether the same   causes reverse discrimination. Answering the query in affirmative the court ruled:-“The blind persons cannot be treated as a separate class except for affirmative action or for the purpose of functional duty attached with an office or post. They are equally competent and have all competitive and cognitive skills similar to the able bodied persons except lacking visionary functions. Therefore, they can be treated as a separate class for the purpose of affirmative actions or for any other purpose relating to the functional competence of the duties attached to the post/office.

As has been noted above, the doctrine of scrutiny casts a duty on the policy makers to justify discrimination and not otherwise. In this case, absolutely no materials have been placed before this Court to justify classification.” Terming the stipulation as violative of Article 14, the court observed:- “The equal opportunities for a blind person cannot be negated unless the functions that have to be discharged by him intrinsically, cannot be separated from his disability, such as persons like drivers or such other functionaries who may require vision for carrying out the function. A blind person would be also able to discharge the same functions as that of an able bodied person without any impediment as far as LPG Distributorship is concerned. Therefore, this Court is of the view that the stipulation in the Brochure that a “totally blind person is ineligible” is violative of Art.14 of the Constitution. Accordingly, the clause as above is set aside.”

Judgement dated 30.05.2016

W.P.(C).No.29046/2013 Baby P. Versus M/s Hindustan Petroleum Corporation Ltd.

Media stories  

Times of India - Disability not a bar for jobs they can perform: HC

The Hindu (HC Questions denial of job to visually impaired)

The Live Law- Kerala HC quashes stipulation that ‘totally blind person is ineligible’ for LPG distributorship as violative of Article 14 of Constitution of India

Franklin Institute's policy of charging attendant of disabled patron held discriminatory

Federal Judge orders Franklin Museum to change admission policy of charging the attendant of disabled patron since it would be deemed discriminatory to disabled under the provisions of ADA.

A federal judge has ordered the Franklin Institute to stop discriminating against disabled patrons by making personal-care attendants pay entrance fees.

The court order follows a 2013 lawsuit alleging that the nonprofit museum's policies prevented some disabled people from enjoying all the institute has to offer by charging their caretakers for the price of admission.

Lead plaintiff Michael Anderson has cerebral palsy and uses an electric wheelchair with the help of a full-time personal attendant. His attendant was charged at the door and for special offerings at the institute.

For instance, when Anderson tried to attend an Imax screening, he was told that his attendant must buy a ticket, a position that attorneys for the institute defended in federal court for more than two years. They have argued that waiving the fee could, eventually, cause the nonprofit to run a deficit and even trigger layoffs.

"The illogic of the institute's position is as striking as its hyperbole," wrote U.S. District Judge Gerald McHugh Jr.

McHugh wrote that he's "frankly puzzled" that the Franklin Institute would resist following the law — the Americans with Disabilities Act — because it could dampen ticket sales. 

"To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes," he wrote.

According to institute attorneys, personal-care attendants are no longer charged the $19.95 cost of general admission. However in filings, they contend the institute cannot extend the policy to Imax screenings and other special exhibits that have limited seating.

Now, the institute is under a court order to change that. 

The institute provides personal-care attendants with a folding chair to sit in an upper section dedicated to wheelchair seating for Imax screenings. Arguing that waiving the folding chair cost is hurting the museum's revenue is "nonsensical," the judge wrote, since those seats are not available to the general public.

The institute does not keep records on how many people with disabilities are accompanied by personal-care attendants, making the financial impact of waiving the folding chair fee difficult to quantify. Furthermore, the majority of Imax and special exhibits never even reach 50 percent capacity, McHugh wrote.

"No reasonable fact-finder could conclude that an occasional $1 loss to a $135 million organization constitutes an unreasonable cost or an undue financial burden," the judge wrote.

In a statement, the Franklin Institute said it has a long history of serving the disabled community through education and outreach programs. 

"We strongly disagree with the decision," said spokeswoman Stefanie Santo, saying the institute will now "explore all of our options." 

The Miami-based attorneys representing the institute never returned calls seeking comment.

Attorney Stephen Gold, who represented the plaintiffs in the case, said without caretakers, many severely disabled people in the Philadelphia area cannot partake in the region's cultural offerings.

"We hope that museums and other institutions throughout the country will modify their policies to conform to the ADA," he wrote in a statement.

Source: Newsworks

Private Insurance Contracts can't override fundamental rights of equality & health through exclusion clauses

Dear Colleagues,

Please refer to my earlier blog entry titled "Extra Premium or reduced insurance amount, both discriminatory against employees with disabilities- Delhi HC" wherein the Hon'ble Delhi High Court had categorically come to a conclusion that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and the court in its remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.

I had called that judgement  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. 

In the instant case, the plaintiff  Jai Prakash Tayal, holding a mediclaim policy had filed a suit seeking payment of Rs. 5 lakh spent on his treatment while the Insurance firm had denied mediclaim saying “genetic disease is not payable as per policy genetic exclusion clauses".

The trial court presided by Hon'ble Additional District Judge, Delhi Dr. (Ms.) Kamini Lau lambasted the United India Insurance Company, a Public Sector Undertaking (PSU) of Govt. of India, for rejecting the mediclaim of a person for heart ailment on the ground of genetic disease exclusion clause. 

News Clipping from Times of India Delhi Edition 02 May 2016

Adding that the clause was "arbitrary , discriminatory and unfair" the Judge said, “I hold that a genetic disease exclusion clause in a mediclaim insurance policy, which totally excludes the grant of insurance in case of genetic diseases, is liable to be struck down being violative of the constitutional mandate, the fundamental underlying constitutional scheme, policy of the state and public good.

The plaintiff had told the court that he had already taken two claims for the same treatment and, therefore, a third claim for the same disease was not liable to be rejected. The court ruled in favour of the plaintiff and said he was entitled to the amount. It observed that a person suffering from a genetic disease is as much in need of a medical insurance cover as others and in fact the liability qua them is more.

“No person can be discriminated or deprived of state protection in case of an ailment, be it genetic or acquired. The courts of law are required to interpret the provisions of the private contracts in the light of these constitutional obligations,“ the court said.

The court held that good health is not a privilege but a justiciable fundamental right and lamented that healthcare finances have a poor record as only 4% of the national budget is spent on it. “The time has come that India catches up with this alternative model of allocating resources and funding to its public health programmes,“ the judge said. 

Related News from Times of India :  Court pulls up insurer, cites right to health