Delhi HC appoints Amicus to decide on constituting Special courts under section 84 of RPWD Act for speedy and fair trial for PwDs

Court: Delhi High Court

Bench: Justice Swarana Kanta Sharma

Case No.: W.P.(CRL)  2500 / 2022

Case Title: RAKESH KUMAR KALRA DEAF DIVAYANG Vs.   STATE GOVT OF NCT DELHI

Dates of Hearings with Orders : 31 Jan 2023 [PDF 508KB] |  21 Feb 2023 [PDF 168KB] | 20 Mar 2023 (renotified) | 07 Jul 2023 |

Brief:

Despite an order by the Court of State Commissioner for Persons with Disabilities (presided by the then SCPD Shri TD Dhariyal) issued in a Suo Motu case No. 988/1141/2019/06/ 3652-3657 Dated: 22 July 2019 and further Notification dated 19 Aug 2019 isued by Department of Law, Justice & Legislative Affairs, Govt. of NCT of Delhi, designating Additional Sessions Judge 02 in all district courts  as Special Courts in Delhi to try offences under the RPWD Act 2016 (PDF 2.9 MB),  the issues seems to be lingering on still. Either the Court & the counsel is not aware of the developments or the Govt. has forgotton its own notification and hasn't yet activated the special courts.

In this case filed by Rakesh Kumar Kalra, a deaf individual, the Delhi High Court has appointed senior advocate N Hariharan as amicus curiae to assist it in deciding the manner in which a special court can be constituted to try offences under the Rights of Persons with Disabilities Act, 2016, ensuring a fair and speedy trial for persons with disabilities.

While framing issues for consideration, a single judge bench of Justice Swarana Kanta Sharma on 31 January 2023 appointed Adv Hariharan to assist the court in deciding “how can a special court be constituted as per Section 84 to try offences under Rights of Persons with Disabilities Act, 2016”. Hariharan will also be assisting on how a speedy and fair trial for the differently abled persons can be ensured and how the judicial system can be improved for the benefit of the differently abled.

Chapter XIII of the Rights of Persons with Disabilities Act deals with the special courts to try offences under the Act. Section 84 of the Act states that for the purpose of providing speedy trial, the state government shall, with the concurrence of the Chief Justice of the high court, by notification, specify for each district, a court of session to be a special court to try the offences under this Act.

Section 85 also provides for the appointment of a public prosecutor for every special court by the state government or the appointment of an advocate, who has been in practice as an advocate for not less than seven years, as a ‘special public prosecutor’ for the purpose of conducting cases in that special court. With respect to offences under the enactment, the Act states that any person who contravenes any provisions of the Act or any rule made thereunder shall for first contravention be punishable with a fine which may extend to Rs 10,000 and for any subsequent contravention with a fine, which shall not be less than Rs 50,000 but which may extend to Rs 5 lakh.

Read the order below:-

Central Administrative Tribunal directs CAG to appoint a meritorious candidate with Mental Illness disability to the post of Auditor

Court: Central Administrative Tribunal, Principal Bench Delhi

Bench:  Hon’ble Mr. Manish Garg, Member (J) & Hon’ble Mr. Anand S. Khati, Member (A)

Case No:    OA No. 339/2022

Case Title: Amit Yadav Vs. Comptroller & Auditor General &Anr. 

Date of Order : 23 January, 2023

Brief:

The CAT Principal Bench directed the CAG to appoint the applicant with Mental Illness disability to the post of Auditor and added that such persons should be facilitated in a friendly and pleasant way that makes them feel relaxed and calms the nervous system. The bipolar persons neither can be treated with bias nor can be regarded as shame to the society. The court held the approach of the CAG as discriminaotry.

In order to raise awareness on the mental illness as a disability, the bench went on to discuss an illustrative list of celebrities diagnosed with OCD and bipolar disease, who have either talked about or living with the symptoms of the condition, have reached their peaks in their career. Among many people from other other countries, the list also highlighted Deepika Padukone, film actress who faced OCD during her career.  

The applicant is a person with benchmark disability (PwBD) having a disability of 55% under the Mental illness category suffering from Obsessive Compulsive Disorder (OCD) & Bipolar disorder. He has been on medication for the same since 2017.

He appeared in the recruitment process and successfully qualified the exam and was recommended for appointment as Auditor in Comptroller and Auditor General (CAG) of India. But the CAG returned his dossiers to SSC on 28.09.2019 claiming that the applicant is not suitable for the post of Auditor and that he may be re-allocated to any other suitable department.

That Section 34 provides for another 1% reservation jointly for two new recognized categories PwBDs under clauses (d) & (e) of sub-section 1 of Section 34. PwBDs with Autism, Intellectual Disability, Mental Illness (MI), Specific Learning Disability (SLD) have been categorized under clause (d) & Multiple Disabilities under clause (e).

The SSC in its official advertisement dated 05.05.2018 just extended the right of reservation to these newly recognized disability categories under the heading “Other PwD” category  but did not mention specific posts reserved for these new categories. The advertisement provided that vacancies will be notified in due course and the candidates belonging to new categories were asked to apply under “Other PwD category”.   Thus the post of Auditor remained recognized for other PwD which includes mentally ill in both the lists of vacancies notified in due course.

The felt that the Section 34 of the RPWD Act clearly rules that there has to be one percent reservation for the PwDs categorized under clauses (d) and (e) and not (d) or (e) i.e. reservation has to be made available to both the categories under clauses and not either of the two. Therefore, the correct course of action would have been to provide reservation to both the categories i.e. under clause (d) and (e) jointly whoever amongst them secures merit would be allotted the post. In this case, the applicant has been recommended as per correct interpretation of law because he was also qualified in the merit list along with other candidates under Multiple disability falling under clause (e). Thus, in the correct course of action, both should have been appointed against one percent reservation.

Explaining the neded of facilitating persons with Mental Illnesss at workplace, the court said, "Bipolar is mood swings, emotions, impulse, what is needed is right kind of professional assistance and  rehabilitation. The persons having bipolar disease are victim of circumstances. Such persons should be facilitated in a friendly and pleasant way that makes them feel relaxed and calms the nervous system. The bipolar persons neither can be treated with bias nor can be regarded as shame to the society. The stand adopted by intending department, i.e., CAG by itself is discriminated to the provisions of Section 34 of the 2016 Act qua the categories which are sought to be capable of performing function as Auditors. The action of the respondents defeats the purpose of RPWD Act. The paramount interest of the State is to sub-serve the aims and objects of the Act and, therefore, the persons with mental illness without any intelligible differentia cannot be discriminated qua the other diseases which fall in the zone of consideration under the provisions of RPWD Act.

The court while allowing the OA,  held that the return of dossier by CAG to SSC was bad in law and thus quashed and set aside the same. It further said that the applicant is also entitled to the protection of Section 20(4) of the RPwD Act. Thus in the event, applicant is found unsuitable for the post of “Auditor” by the Independent Medical Board, he shall be entitled to alternative offer of appointment to alternative suitable equivalent assignment/post in another department in consultation with Ministry of Social Justice and Empowerment and SSC while re-assigning/re-allocating the applicant to an alternative post, it become necessary that his pay, emoluments and conditions of service must be protected.

Read the judgement/ order below: