Madras HC Directs Authorities To Exempt GST, Toll Tax For Car Purchased By Visually Impaired Buyer

Court: Madras High Court (Madurai Bench), India

Bench: Justice PT Asha

Case No: W.P.(MD) Nos.12955 and 13043 of 2023 and W.M.P.(MD) No.11040 of 2023

Caste Title (Lead case): Carunia Seelavathi Vs. The Secretary to the Government of Tamil Nadu, Department of Transport & Others

Date of Order/Judgement:  26 June 2023

Key issue: Whether Ms. Seelavathi, despite her vehicle not being specially adapted, was still entitled to tax exemptions based on her visual impairment.

Brief: 

While dealing with a case of denial of Concessions in GST, Road Tox, Toll Tax etc to a person with vision impairment, the Madras High Court directed authorities to grant exemption from the motor vehicle tax as well as the GST to a visually impaired person in respect of the car purchased by her. Currently the policy allows such exemptions to persons with orthopedic /locomotor disabilities. 

The bench took note of the recommendations made by the Chief Commissioner for Persons with Disabilities to Department of Heavy Industries, Ministry of Heavy Industries and Public Enterprises and Department of Revenue, Ministry of Finance for amendments to their rules to give concession with reference to GST, Road Tax, Toll Tax etc to the visually impaired persons.

The court was dealing with a plea filed by Ms. Carunia Seelavathi, who is a person with 100% visual impairment and brought a car for her own use. She is dependent upon a third person for her travel. It was submitted that her request for tax exemption under the Government Order dated 29.12.1976 and the order of the Chief Commissioner of Persons with Disabilities (Divyangjan) was rejected by the authorities on the ground that the vehicle used by her would not undergo any changes in the form which was the basis for exemption.

In December 1976, the Government of Tamil Nadu Home (Transport -T) Department issued a notification exempting payment of tax on all motor vehicles specially designed or adapted for the use of physically handicapped persons, provided the adapted vehicles are used by physically handicapped persons only.

The court, considering the recommendation by the Commissioner, and taking into account the fact that visually impaired persons are now having more job opportunities and face challenges in commute, opined that such an exemption could be granted to the petitioner as well.

Considering the recommendation of the Commission, which is a Commission specifically established for the persons with disabilities under the RPWD Act and taking into consideration the fact that today the visually challenged persons are having more opportunities of employment even in the Government sector and their commuting to the place of work becomes challenging, this Court is of the opinion that the exemption has to be granted to the petitioner and accordingly, the Writ Petitions are allowed,” the court held.

The court thus directed the authorities to ensure that necessary orders exempting the petitioner from motor vehicle tax and GST are passed within a period of four weeks.

Access the Judgement 

CCPD under Disabilities Act has no power to grant injunctions - says MP High Court

Court: High Court of Madhya Pradesh at Jabalpur

Bench: Shri Justice Anand Pathak

Case No. WP No. 7062 of 2023

Case title: Central Bank of India Vs. Chief Commission for Persons with Disabilities & Anr.

Date of Judgement : 12 June 2023

       IN THE HIGH COURT OF MADHYA PRADESH

                   AT J A B A L P U R

                          BEFORE

         HON'BLE SHRI JUSTICE ANAND PATHAK

               WRIT PETITION NO.7062 OF 2023

BETWEEN:-

CENTRAL BANK OF INDIA [A BANK CONSTITUED

UNDER THE BANKING COMPANIES (ACQUISITION

AND TRANSFER OF UNDERTAKINGS) ACT, 1970]

HAVING ITS HEAD OFFICE AT CHANDERMUKHI

BLDG., NARIMAN POINT, MUMBAI - 400021 THROUGH

ITS AUTHORIZED SIGNATORY - SHRI GAURAV SINGH,

S/O- SHRI NEM SINGH CHAUHAN, AGED ADULT,

PRESENTLY POSTED AS REGIONAL HEAD, CENTRAL

BANK OF INDIA, REGIONAL OFFICE JABALPUR R/O-

CENTRAL BANK OF INDIA, REGIONAL OFFICE,

GWARIGHAT, JABALPUR

                                          ..... PETITIONER

AND

1   CHEIF COMMISSIONER FOR PERSONS WITH

    DISABILITY (DIVYANGAN), R/O- 5TH FLOOR, NISD

    BUILDING, PLOT NO.G-2, SECTOR-10, DWARKA,

    NEW DELHI- 110075

2   HITESH SUKHEJA S/O- SHRI RAJKISHORE

    SUKHEJA AGED ADULT, R/O- FLAT NO.304,

    APEKSHA APARTMENT, BEHIND GORAKHPUR

    GURUDWARA, GORAKHPUR, JABALPUR (MADHYA

    PRADESH)

                                           .....RESPONDENTS

        __________________________________________________________

            Reserved on         :      25/04/2023

            Pronounced on       :      12/06/2023

      This petition having been heard and reserved for order coming on

for pronouncement this day, this Court passed the following:

                                                    ORDER

With consent heard finally.

The present petition has been filed by the petitioner/Central Bank of India taking exception to the order dated 08.02.2023 (Annexure P/6) passed by the Court of Chief Commissioner for persons with disability (Divyangjan), whereby application preferred by the respondent No.2 has been allowed and Chief Commissioner purportedly exercising the power under Section 75 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred as "Act of 2016") quashed the transfer order dated 26.04.2022 issued by the petitioner/Bank by which respondent No. 2 namely Hitesh Sukhija had been transferred (Rotational Transfer) from Jabalpur to Rajkot (Gujarat) Region.

2. Precisely stated facts of the case are that the petitioner is a public sector bank constituted under the Banking Companies (Acquisition of Transfer of Undertaking) Act, 1970 and respondent No.2 is the employee of the petitioner/Bank who was working on the post of Assistant Manager (Scale-I Officer). Services of the respondent No.2 are governed by the Central Bank of India (Officers') Service Regulations, 1979 (hereinafter referred as "Regulations of 1979").

3. Respondent No.1 is the statutory authority constituted under the Rights of Person with Disabilities Act, 2016 (hereinafter referred as "Act of 2016").

4. For past 12 years, respondent No.2 was posted within Bhopal Zone of the Bank since year 2011 till date. Presently, he was posted in Jabalpur Region of Bhopal Zone. After serving more than 10 years in the Bhopal Zone, in light of the Rule 47 of the Regulations, 1979, said employee was transferred to Rajkot Zone vide order dated 13.04.2022 (wrongly mentioned as order dated 26.04.2022 in the impugned order). The said transfer was in accordance with the relevant guidelines issued by the Central Vigilance Commission which clearly prescribes that Officers holding sensitive positions need to be rotationally transferred. Said guidelines are intended to counter the scams generated, because of the proximity of officer with the local population.

5. Instead of complying the transfer order, respondent No.2 peculiarly challenged the aforesaid transfer order before the Chief Commissioner Persons with Disabilities (Divyangjan) and raised the point that he is care giver of his mother who is suffering 60% Locomotor Disability and since his wife is also a working woman at Jabalpur, therefore, in absence of respondent No.2, she would not able to manage his mother who is the person with disabilities and respondent No.2 is the care giver of his mother. On his application, cognizance was taken. Bank filed its reply and placed the guidelines and relevant regulations in this regard, but to no avail. CCPWD (Chief Commissioner for Persons with Disabilities) passed the impugned order and set aside the transfer order issued by the petitioner/Bank. Being aggrieved by the said transfer order, this present petition has been filed.

6. It is the submission of learned counsel for the petitioner/Bank that the court of Chief Commissioner (respondent No.1 herein) exceeded the jurisdiction in entertaining the said application and caused illegality in exercising the powers under Section 75 of the Act, 2016. Impugned order has been passed in derogation of Rule 47 of the Service Regulations, 1979 which have statutory force. Regulation 47 mandates transfer of every officer at any place in India. Since respondent No.2 completed 10 years in a particular zone, therefore, he is bound to be transferred out of the zone because as per the circular dated 08.12.2021 which prescribes transfer of main stream officers completing continuation of stay of 6 years in a region and / or 10 years in a zone.

7. It is submitted by the learned counsel for the petitioner that as per guidelines of DOPT dated 08.10.2018, Bank has to follow the guidelines subject to administrative constraints. Here, administrative constraints is that respondent No.2 be moved out of the zone after completion of 10 years for better administration and in accordance with relevant regulations.

8. It is further submitted that no material is placed on record to show that why the wife of the respondent No.2 cannot take care of the mother of respondent No.2 and since wife of respondent No.2 is also working woman, then it is not the case that nobody can take care of mother of respondent No.2. Employee himself is not a person with disabilities.

9. Learned counsel for the respondents opposed the prayer and submitted that mother of respondent No.2 is suffering 60% Locomotor disability, therefore, he moved an application before the respondent No.1 and respondent No.1 rightly passed the impugned order. He placed the reliance over the guidelines dated 29.03.2023 issued by the Department of Financial Services, Ministry of Finance Government of India to submit that he is entitled to be retained at Bhopal Zone. He further submitted that complaints of some other similarly placed persons have been taken care of, but the case of the respondent No.2 has not been considered and he has been transferred outside the Bhopal. He supported the impugned order.

10. Heard the learned counsel for the parties and perused the documents appended thereto.

11. It is well settled in law that transfer is an incident of service. No one much less petitioner has any vested right to be posted at a particular place of posting. It is well settled in law that employer is the best judge to organize its work force and it is also well settled in law that a transfer order cannot be subjected to judicial review unless and until same is found to be influenced by malafide or arbitrary exercise of powers which petitioner fails to do so. Concept of equality as enshrined under Articles 14 and 16 of Constitution of India, has no application to the cases of transfers.

12. So far as the present case is concerned. Here, the transfer dated 26.04.2022 has been challenged by the respondent No.2 before the Chief Commissioner under the Act of 2016. Section 75 of the Act discusses the functions of Office of Chief Commissioner and apparently, these are akin to the function prescribed in Sections 47, 58, 59, 63 of the Erstwhile Act with Nomenclature Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act 1995.

13. Section 75 of the Act, 2016 is reproduced for ready reference as under:-

"75. Functions of Chief Commissioner.--(1) The Chief Commissioner shall--

(a) identify, suo-motu or otherwise, the provisions of any law or policy, programme and procedures, which are inconsistent with this Act and recommend necessary corrective steps;

(b) inquire, suo motu or otherwise, deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the Central Government is the appropriate Government and take up the matter with appropriate authorities for corrective action;

(c) review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with disabilities and recommend measures for their effective implementation;

(d) review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures;

(e) study treaties and other international instruments on the rights of persons with disabilities and make recommendations for their effective implementation;

(f) undertake and promote research in the field of the rights of persons with disabilities;

(g) promote awareness of the rights of persons with disabilities and the safeguards available for their protection;

(h) monitor implementation of the provisions of this Act and schemes, programmes meant for persons with disabilities;

(i) monitor utilisation of funds disbursed by the Central Government for the benefit of persons with disabilities; and

(j) perform such other functions as the Central Government may assign.

(2) The Chief Commissioner shall consult the Commissioners on any matter while discharging its functions under this Act."

14. From the perusal of the Section 75 of the Act, 2016, it appears that no such right is vested with the Chief Commissioner to confer or create any right for the respondent No.2. The said functions of Chief Commissioner are in respect of identification of programme/procedure, inquiry about corrective action, review of the safeguard and promote awareness etc.. It nowhere gives any right to the authority or jurisdiction to the Chief Commissioner to act in such a manner whereby usurping the jurisdiction of other forums. Said aspect has been duly considered in respect of earlier Act of 1995 by the Supreme Court in the case of State Bank of Patiala and others Vs. Vinesh Kumar Bhasin reported in (2010) 4 SCC 368. Paragraphs No.14 to 19 of the said judgment are reproduced as under:

"14. The Chief Commissioner also overlooked and ignored the fact that as an authority functioning under the Disabilities Act, he has no power or jurisdiction to issue a direction to the employer not to retire an employee. In fact, under the Scheme of the Disabilities Act, the Chief Commissioner (or the Commissioner) has no power to grant any interim direction.

15. The functions of the Chief Commissioner are set out in Sections 58 and 59 of the Act. Section 58 provides that the Chief Commissioner shall have the following functions:

"58.(a) coordinate the work of the Commissioners;

(b) monitor the utilisation of funds disbursed by the Central Government;

(c) take steps to safeguard the rights and facilities made available to persons with disabilities;

(d) submit reports to the Central Government on the implementation of the Act at such intervals as that Government may prescribe."

16. Section 59 provides that without prejudice to the provisions of Section 58, the Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints and take up the matter with the appropriate authorities, any matters relating to (a) deprivation of rights of persons with disabilities; and (b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities. The Commissioners appointed by the State Governments also have similar powers under Sections 61 and 62.

17. Section 63 provides that the Chief Commissioner and the Commissioners shall, for the purpose of discharging their functions under this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 while trying a suit, in regard to the following matters:

"63. (a) summoning and enforcing the attendance of witnesses;

(b) requiring the discovery and production of any document;

(c) requisitioning any public record or copy thereof from any court or office;

(d) receiving evidence on affidavits; and

(e) issuing commissions for the examination of witnesses or documents."

Rule 42 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Rules, 1996 lays down the procedure to be followed by the Chief Commissioner.

18. It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil court which are not vested in them by the provisions of the Disabilities Act. In All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India, this Court, dealing with Article 338 (8) of the Constitution of India (similar to section 63 of the Disabilities Act), observed as follows:

"5. It can be seen from a plain reading of clause (8) that the Commission has the power of the civil court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause

(b) of clause (5) of Article 338 of the Constitution.

10....... All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do no inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."

19. The order of the Chief Commissioner, not to implement the order of retirement was illegal and without jurisdiction."

15. Similarly in the case of Bharat Sanchar Nigam Limited and another Vs. Sarvothaman reported in (2013) 10 SCC 489. Supreme Court reiterated the scope of jurisdiction of Chief Commissioner in following words:-

"12. We are of the view that the Chief Commissioner as well as the High Court have failed to appreciate that the respondent was working in a cadre in which there was no reservation for promotion under physically handicapped quota. Further exclusion of TOA cadre from the promotional post of physically handicapped persons is due to a policy decision of the Government of India taken by the then Department of Telecommunications. In such circumstances, the Chief Commissioner has no power under Section 59 of the Act of 1995 to direct the inclusion of TOA cadre in the list of identified posts and then to order preparation of reservation register for physically handicapped persons and to consider the claim of the respondent for promotion under the reserved vacancies for the various Grades under TOA.

13. The Chief Commissioner under Section 59 of the 1995 Act has got only the power to examine the matters relating to "deprivation of rights" of persons with disabilities. The Commissioner can only examine whether the persons with disabilities have been deprived of any "rights" for which the Commissioner has to first examine whether the complainant has any "rights" under the laws. The Commissioner cannot confer or create any right for the Appellants. The respondent could not establish that any right has been conferred on him and such right has been denied to him by the Department. The Respondent wanted conferment of a right which was extended only to specific five categories of posts on the basis of the report of a High Power Committee. The Chief Commissioner has no power to direct inclusion of one more category among the identified categories and to grant the benefit. Under Section 59(b) the Chief Commissioner has got the power to look into the complaints with respect to the matters relating to non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of rights or persons with disabilities. It is not the case of the respondent that the Department has failed to implement either any laws, rules or regulations. The Respondent prayed for positive direction, claiming certain rights, which had not been conferred on him either by any law, regulations or orders. Consequently, the directions given by the Chief Commissioner for the inclusion of TOA cadre among the identified categories cannot be sustained and the Commissioner while passing such order has exceeded the powers conferred on him under Section 59 of the 1995 Act."

16. Therefore, it is absolutely clear that Chief Commissioner in the present case exceeded his jurisdiction and caused illegality and arbitrariness. He ought not to have usurped the jurisdiction like in the present matter.

17. Therefore, on this count, impugned order suffers from jurisdictional error and deserves to be set aside forthwith.

18. Even otherwise, as per Regulations of 1979 and different DOPT circulars issued from time to time, certain welfare measures are being taken subject to Administrative Constraints and it is clear that administrative purpose cannot be overlooked in such matters. If the contentions of the respondent No.2 are allowed to sustain, then he will serve under whole tenure at one place at the pretext of being Care Giver and this would cause severe disruption in the administrative functions of an organization. The same cannot be allowed to persist. Incidentally, here the respondent No.2 is not the person with disability but is the care giver.

19. He already completed 12 years of his tenure at Bhopal Zone and therefore, he deserves to be transferred to a different zone and petitioner and its officers have caused no illegality, arbitrariness and malafide to transfer the respondent No.2 at Rajkot Zone.

20. Reference of circular dated 29.03.2023 by respondent No.2 is in respect of care giver of person with benchmark disabilities and case of respondent No.2 does not fall under the said category. As per Section 2 (s) Person with Disability is defined in following manner:-

"Section 2 (s). "person with disability" means a person with long term physical, mental, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"

21. Whereas Person with disability having high support needs is defined in following manner:-

2"(t) "person with disability having high support needs" means a person with benchmark disability"

22. Said circular dated 29.03.2023 discusses about benchmark disability and not person with disability simpliciter. On this count, contentions of the respondent No.2 stands rejected.

23. Respondent No.2 raised the plea of discrimination but not substantiated it under what circumstances their cases were considered by petitioner/Bank. Even otherwise, negative parity cannot be invoked to bring home the plea of parity.

24. In the cumulative analysis, petitioner/Bank made out its case for interference because of discussion referred above.

25. Resultantly, impugned order dated 26.04.2022 stands set aside with direction to the respondent No.2 to immediately join at his transferred place of posting at Rajkot (Gujarat) as per joining policy of petitioner/Bank. In absence thereof, petitioner/Bank shall be at liberty to initiate appropriate proceedings against the respondent No.2 in accordance with the Service Regulations.

26. Accordingly, petition is allowed and disposed of in above terms.

(ANAND PATHAK) JUDGE 

A medical student knocks the doors of Himachal Pradesh high court against accessibility barriers in Medical college

Despite winning her MBBS seat after the High Court's intervention, Ms. Nikita Choudhary, a first-year student of Dr Rajendra Prasad Medical College, Tanda continues to brave ordeals of inaccesssibility at the college campus. Nikita who is also a wheelchair user and has 78% disability, has written to the Chief Justice of the Himachal Pradesh High Court, highlighting various difficulties being faced by her.

Highlighting the absence of accesssible infrastructure for wheelchair users, she has written about absence of ramps in the academic, para-clinic blocks, library and auditorium. The elevators installed in these blocks often go out of order and she has to sometimes miss classes due to that reason.

In the year 2022, she was denied admission  by the college referring to the MCI rules that a student with 78 per cent disability could not be enrolled for the course. But after the intervention by the High Court, she secured her hard earned seat.   In her letter to the Chief Justice, she has stated that since her admission, she has never entered the college library and auditorium. Even the para-clinic and washrooms are also not accessible to her.

Her repeated requests to the engineering staff to repair the elevators have fallen on deaf ears. Even her request for the allotment of cubical accommodation in the college hostel was also denied. She said she needed an attendant to assist her always. It was not possible for her to live in a dormitory without an attendant. Now she had rented a room outside.

As per court order, she said, physically disabled students were entitled to free education up to university level. However, she was forced to pay the admission fee, which had not been refunded to her so far.

A senior officer of the medical college said they were aware of the problems being faced by Nikita. He said, “Lifts sometimes go out of order due to technical glitch or power failures. The college will extend all possible help to her.”

We will keep you posted on this case.... 

Court of CCPD directs Paytm (One 97 Communications) to prepare a roadmap to make existing features accessible and conduct an access audit

Court: Chief Commissioner for Persons with Disabilities, Govt. of India

Bench: Ms. Upma Srivastava, CCPD

Case No: 13392/1141/2022

Case Title: Amar Jain Vs. MeitY, One 97 comunications Ltd & ors.

Date of Judgement : 31 May 2023

Brief:

In an order passed on 31.05.2023 by the Court of Hon'ble Chief Commissioner for Persons With Disabilities, Paytm has been asked to prepare a roadmap to make its existing features accessible, conduct an accessibility audit, and ensure that role-out of all new features have accessibility embedded for all categories of persons with disabilities.

Paytm being a private service provider is also governed by the mandatory requirements of accessibility. This is very positive and forward looking order since the Court of  CCPD has asked the service provider to conduct an accessibility audit and also remediate the existing & future issues. 

The court passed the following recommendations:

"That the Respondent No, 2 (Paytm) shall conduct a meeting with the Complainant to identify the issues relating to accessibility in newly added features. Further, the Respondent No. 2 shall also conduct accessibility audit of its app to identify issues relating to accessibility. Thereafter the Respondent No. 2 shall prepare a roadmap to address two issues, i.e. accessibility of existing features of the app and plan to ensure that all new features which will be added in future are accessible for divyangjan of all categories, right from the first day of roll out. 

That the whole exercise shall be completed by the Respondent No. 2 (Paytm) within 3 months of receiving the copy of this Order and in case the Complainant is not satisfied with the steps taken or the roadmap prepared by the Respondent No.2, the Complainant shall be at liberty to approach this Court again."

Read the order:

Court of CCPD directs the Ola Cabs to make their app accessible to all users and allow independent and dignified use of app.

Court: Chief Commissioner for Persons with Disabilities, Govt. of India

Bench: Mr. P. P. Ambashta, Dy CCPD

Case No: 13532 /1102/ 2022 / 159384

Case Title: Amar Jain Vs. Ani Technologies Private Limited (Ola Cabs)

Date of  Reccord of Proceeding (ToP): 31 May 2023

Next Date of Hearing: 04.07.2023

Brief:

The complainant challenged the inaccessibility of OLA Appplication. 

This Court sided with the preliminary observations made by the Complainant that addressing all the cccessibility chalenges in the  OLA app will take some time and thus some interim arrangements are to be made. 

The Court thus recommended that the Respondent shall make features such as pickup & drop location and driver information accessible for Persons with Disabilities within 4 weeks from the date of this Order, so that Persons with Disabilities become able to make these inputs without assistance of any other person.

The Court also recommended that within 4 weeks from the date of the Record of Proceedings (RoP). the Respondent shall conduct meeting with the Complainant and identily issues relating to accessibility of app and prepare a roadmap for making all features of the app accessible for Persons with Disabilities.

The court  further expressed that considering the continuous nature of the Complaint, this Court decides that hearing shall be conducted again in the present Complaint. The Respondent is directed to inform this Court about the compliance of above two recommendations during next hearing which shall be conducted on 04.07.2023.

This is also a good practice being followed by the Court to keep the matters live until substantial actions have been taken by the respondent to remediate the wrongs and thus is worthy of mention.

Read the Order embedded below:

DHC seeks UOI's stand on a PIL seeking direction to enhance effective access for persons with vision impairments by placing QR Codes on Medicines, Food Products, Cosmetics & other Consumer products .

Court: Delhi High Court

Bench: Hon'ble Chief Justice Satish Chandra Sharma and Hon'ble Justice Subramonium Prasad. 

Case No: W.P.(C) 5985/2023 

Case Title: The Kapila and Nirmal Shweta Hingorani Foundation & Ors  Vs. Union of India & ors.

Date of Hearing : 09 May 2023

Next Date of Hearing: 16 Aug 2023

Brief:

In a PIL moved by The Kapila & Nirmal Hingorani Foundation, a public charitable trust and two visually impaired Delhi University professors, a division bench of  Delhi HC issued notice to the Centre through the Ministry of Health and Family Welfare, Ministry of Social Justice and Empowerment (Department of Empowerment of Persons with Disabilities) and Food Safety and Standards Authority of India.

The PIL seeks to secure effective access for visually impaired persons to medicines, food, cosmetics and other consumer products which is also a mandate of the Rights of Persons with Disabilities Act, 2016, (RPwD Act 2016) whcih specifically provides for (i) measures/ schemes/ programmes to promote their healthcare (ii) standards of accessibility for information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas and (iii) measures to promote development, production and distribution of universally designed consumer products and accessories for general use for persons with disabilities among other rights.

The PIL submitted that visually impaired people face immense difficulties in taking medicines and they feel the shape and size of tablets and do not even have the benefit of differentiating drugs based on colour. Due to a lack of accessible information, visually impaired people may take wrong medicines, leading to major health problems, adverse reactions and even loss of life.

During the Covid-19 pandemic, the petitioners Dr. Smriti Singh, associate professor (English) at Maitreyi College; and Shobhan Singh, senior assistant professor (History) Zakir Hussain PG Evening College, who are visually impaired, went through a horrible time, desperate for help and information, in absence of accessibility of medicines and food products.

The plea highlights that the scope for utilising the capabilities of smartphones with QR codes to help visually impaired persons identify products and access all relevant product information is huge. It referenced newsreports that India had 1.2 billion mobile subscribers in 2021, of which about 750 million were smartphone users. Furthermore, the number of smartphone users was expected to increase to 1 billion by 2026, with rural areas driving the sale of internet-enabled phones, which in turn were set to get a push with the government’s plan to fiberise all villages by 2025 under the BharatNet Programme.

The petitioners had sent a representation in December 2021 and a follow-up in February 2022 to the Prime Minister of India and another representation to the Ministry of Health and Family Welfare on February 21, 2022 which is yet to be responded.

The representation of the petitioners urged that all medicine manufacturers be directed to affix QR code on each tablet (or at the very least between two tablets) at the back of the strip so that a smartphone with accessibility feature could then scan the QR code with its stored data or information about the particular medicine, and decode it to convert the text to speech format of the application.

The PIL claimed that petitioners, on learning that some medicines in the market did have QR Codes (without full information/details of the medicine), also made follow-up representations. The plea stated that employing QR Codes in the manner suggested in the representations would increase the efficacy of medical care for visually impaired patients by reducing medication errors, incorrect dosages, unintended drug interactions and side effects.

The PIL has asserted that the continued lack of effective access to medicines, food, cosmetics and other consumer products constitutes a “denial of the constitutional rights of visually impaired persons under Article 21 of the Constitution” as well as their “statutory rights” under the Rights of Persons with Disabilities Act, 2016.  The PIL has sought directions to the concerned authorities to secure effective access for visually impaired persons to medicines, food, cosmetics and other consumer products and towards this end, to take comprehensive measures and adopt comprehensive guidelines on affixing QR Codes on such products.

Matter will be next listed on 16 Aug 2023.

Bombay HC directs BMC to consider use of technology (elevators etc) for all skywalks to make them friendly to senior citizens and persons with disabilities. [Judgemnet included]

Court: Bombay High Court

Bench: Hon'ble Mr. Justice Girish Kulkarni and Hon'ble Mr. Justice R N Laddha. 

Case No. : WP/771/2023 [Original]

Case Title: K.P. Purushothamna Nair of Mumbai VS.  Municipal Corporation of Greater Mumbai

Date of Judgement: 24 April 2023

Subject: Safe and Acessible Pavements / Pedestrian Facilities, Accessibility of Skywalk to persons with disabilities and senior citizens. 

Brief:

On a petition by an HC staff-turned-lawyer K P P Nair, a Bandra resident, the BMC has been directed by the Bombay HC to install mechanical walkways and elevators at both ends of skywalks to help the senior citizens and persons with disabilities in commuting every day. It also ordered that in future, in all skywalks, the BMC must consider the use of technology to make these more sturdy and beneficial for all commuters.

The petiton raised important questions of accesssibilty of pedestrian facilities for the senior citizens and persosn with disabilities.  He narrated that everyday thousands of persons commute between Bandra Railway Station, on Bandra East side towards MHADA End. This segment faces a junction which has a flow of heavy traffic as pedestrians are required to also cross the Western Express Highway. He has submitted that there is only one pavement which is required to be used by these commuters which gets unimaginably crowded, thereby creating a routine situation of accidents taking place and that such a chaotic situation is totally against the interest of the commuters. 

The HC had on an earlier hearing dated 20 March 2023 observed that commuter safety is paramount and any mishap occurring due to non-availability of a safe footpath or walkway would amount to a breach of fundamental rights guaranteed under the Constitution to the citizens. The bench noted the Central and Western railways as also the Metro have provided such mechanisms at several railway stations, including escalators. Asking the BMC to consider it too, the bench said, “Benefits of modern technology need to be made available to the commuters, to maketheir commuting life in Mumbai more easier and comfortable. ” 

“We are sure that such aspects as highlighted by us would be considered and borne in mind by the MCGM in consultation with all other authorities, so that not only the proposed skywalk but also all existing skywalks in the city are made ideal, for their best possible utility, so as to achieve the purpose for which they are constructed,” 

The steps being taken by the MCGM and more particularly, that within a period of 15 months from the date of award of the contract, the entire work of restoration of the sky-walk in question would be completed, is a welcome measure being taken by the MCGM. We accordingly dispose of this petition accepting the statements as made in the reply affidavit and permitting the MCGM to progress the work with all expediency, expresed the court in its order disposign off the petition. 

Read the judgement:

Supreme Court directs Consortium of National Law Universities to provide Scribe to those who are unable to find scribe, among other reliefs.

Court: Supreme Court of India

Bench:  Dr Dhananjaya Y Chandrachud, Chief Justice of India; Pamidighantam Sri Narasimha, Justice  and  J B Pardiwala, Justice

Case Number: Writ Petition (Civil) No. 1109 of 2022

Case Title: Arnab Roy Versus Consortium of National Law Universities & Anr.

Date of Judgement: 17 March 2023

Cases Reffered: 

 1. Vikash Kumar Vs Union Public Service Commission & Ors.

Brief:

The petitioner,  a lawyer and a disability rights activist, moved these proceedings under Article 32 of the Constitution of India challenging certain conditions which were imposed for the conduct of the Common Law Admission Test 2023 scheduled on 18 December 2022. The issue specifically addressed by the petitioner relates to the facilities for candidates who intend to avail of a scribe as the restrictive conditons have been imposed belatedly just four weeks before the exams which in turn would mean that atleast 13 visually impaired candidates would not be able to avail the scribe. This included denial of the right to a scribe to candidates who do not have a benchmark disability though they have a genuine difficulty in writing.

The Supreme Court bench  in this matter has taken a progressive stance while dealing with the Examination Guidelines to ensure equal opportunities for candidates with disabilities in the LL.B admissions process particularly about provisions for necessary accommodations and support to participate in the CLAT examination . 

The bench clarified that candidates appearing for the CLAT (Common Law Admission Test) examination conducted by Consortium of National Law Universities can either bring their own scribe or if it is not possible to do so, request the Consortium to provide a scribe who is then made available to the candidate.  Where the candidates are unable to find their own scribe and the Consortium provides a scribe, at least two days’ time should be provided so as to enable the candidate to interact with the scribe, directed the court.

The bench, headed by the Chief Justice D Y Chandrachud  passed several directions to guarantee that candidates with disabilities receive all the facilities specified by the Ministry of Social Justice and Empowerment,Govt. of India. The Court accepted the suggestion of the petitioner and emphasized the importance of issuing guidelines well in advance, ensuring clarity regarding the facilities available for candidates with disabilities.

Additionally, the bench also directed the consortium to align their guidelines with the official memorandum issued by the Ministry of Social Justice and Empowerment. While there were concerns that the condition of scribes not being involved in coaching for other competitive exams would limit the availability of scribes, the Court has allowed the consortium's request to ensure the sanctity of the CLAT exam. However, it also highlighted that the nature and contents of the Examination Guidelines cannot be frozen for the future. The Consortium would be at liberty to modify the Guidelines bearing in mind the exigencies of the situation and the constantly evolving nature of the knowledge and experience gained in conducting CLAT particularly in the context of the rights of PwD candidates.

This judgement is a significant step towards promoting inclusivity and equal opportunities in legal education. The Consortium of NLUs was established to enhance the standards of legal education and coordination among National Law Schools, and this decision aligns with their objective.

This judgement will undoubtedly create a more inclusive and fair admission process for aspiring law students with disabilities in line with the intention of the legislature behind passing the RPWD Act 2016.

Madras HC- Motor Vehicle Tax Exemptions to disabled can not be subject to condition that it is driven by the disabled himself [Judgement Included]

Court: Madras High Court (Madurai Bench)

Bench: Hon`ble Ms. Justice P.T. ASHA

Case No: WP(MD).1480/2023

Case Title: Angappan Vs. The Secretary to the Government of Tamil Nadu 

Date of Order/Judgement:  13/03/2023

Brief:

One Mr. Angappan claiming to have 80% locomotor disability had approached the court after the Regional Transport Officer, Pudukottai had rejected his application for tax exemption. The officers had demanded production of the disability certificate and a certificate stating that the Angappan can drive the vehicle. They also sought for a certificate from the Retro Fitment Centre, which had adapted the vehicle. Though the certificates were produced, his application was rejected. The authorities however countered this claim by submitting that the tax exemption was available only for self driven vehicles. 

Clearing a misconception that persons with disabilities (PwD) would be exempted from paying tax for their motor vehicles only if they drive the vehicle, the Madurai Bench of the Madras High Court recently came to the rescue of Mr. Angappan, a person with 80% locomotor disability who, when he applied for tax exemption for registration of his car, was asked to produce a certificate that he could drive the car.

The court noted that the authorities had in fact misconstrued the provisions of the Government Order. The stand that tax exemption was available only for self driven vehicles was a misconception. Further, the court noted that in the present case, there were no major alterations as contemplated in the Act. The only alteration was for the easy ingress and egress of Angappan. Thus, the court held that Angappan was eligible for tax exemption and directed the authorities to grant the said exemption to him while alowing his petition. 

The Governmetnof Tamil Nadu Home (Transport -T) Department had passed a GO in December 1976 exempting persons with physical disabilities from paying tax for motor vehicles that are specifically designed or adapted for their use, provided that the said vehicles are used only by persons with disabilities. However, the purpose of the GO has been totally misconstrued by the authorities, the judge observed.

“They have understood the notification to be available only to motor vehicles, which are driven by the physically challenged persons themselves. This is an absolute misconception. The said notification is issued in tune with the definition of an ‘adapted vehicle’ as provided in Section 2 (1) of the Tamil Nadu Motor Vehicles Act. The only condition prescribed is that the vehicle should be ‘used’ by the person, for whose use the vehicle has been adapted. Nowhere does it state that it should be driven by the said person,” the judge clarified.

"Neither the definition under Section 2(1) nor Section 52 specifies that it is the person, for whose purpose, the adaption is made, who should ride the vehicle. On the contrary, the definition of adapted vehicle makes it clear that the vehicle should be used solely by or “for such person”.

Justice Asha thus opined that the State should ensure that such persons who are granted exemption enjoy the same and added as below:

“Where a rule or regulation purports to grant a right to a particular section of society, courts must use the rule of purposive interpretation to ensure that the object of beneficial legislation reaches the intended section of the society,” 

The government order, read along with Section 2 (1) and Section 52 of the Act, clearly spells out that a physically challenged person, who owns a vehicle and has adapted the vehicle for his or her use, is entitled to the tax exemption, the judge added and allowed the petition.

Read the order /Judgement dated 13 Mar 2023 below:

DHC directs Delhi Govt. to undertake Special Recruitment Drive To Fill Up Vacancies For PwDs

Court: Delhi High Court
Bench: HON'BLE THE CHIEF JUSTICE and  HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
Case No. : W.P.(C) 8455/2017
Case Title: NATIONAL FEDERATION OF THE BLIND Vs. GOVT. OF NCT OF DELHI AND ANR.
Date of Judgement: 06.03.2023
Neutral Citation Number: 2023/DHC/001652

Brief:

While disposing off a public interest litigation filed by National Federation of the Blind alleging inaction on the part of the Delhi Govt. in implementing reervation for persons with disabilities particularly persons with visual disabilities, a division bench of the Delhi High Court directed Chief Secretary of the Government of NCT of Delhi (GNCTD) to undertake a special recruitment drive for filling up backlog of vacancies for persons with disabilities (calculated rom 1996 when the Persons with Disabilities Act 1995 was enforced @ 3% and from 2017 till date @ 4% in various departments or establishments in a time bound manner. 

The division bench also set out a time schedule to be followed by the GNCTD to carry out the special recruitment for filling up the vacancies. Directing the concerned departments, the court said, “The notification of advertisement by DSSSB/ UPSC, as the case may be, for filling up back-log of vacancies for persons with benchmark disabilities against requisition sent to them be issued within 30 days from the date of receiving requisition. The DSSSB/ UPSC, as the case may, shall declare the result and the process of appointment be concluded within a period of 30 days from the date of declaration of result/ interview.”

Read the detailed Judgement below: