Wednesday, July 29, 2009

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

  • The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.

  • In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.

  • Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.

  • The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.

  • Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.

  • Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
    Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.

  • If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.

  • However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).

  • Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.

  • However, in the instant case, the issue was of denial of promotion and not saving the job.
    As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.

  • However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.

  • However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.

  • The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types, the way PWD Act does, Hence, it perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.

  • Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to declare him to be 'medically unfit' for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.

The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate

Friday, July 24, 2009

Detailed Facts of the Chandigarh Case of Raped Mentally challenged Girl's Pregnancy

Dear Friends,

My senior colleage Shri Collin Gonsalves, Senior Advocate, Supreme Court who represented one of the social activist in the said case, has very kindly put forth the detailed actual facts of the case which reveal how difficult it was to take either of the decision - be it in favour of continuing the pregnancy and aborting the forced pregnancy. He also highlights the lack of support systems to the challenged girl and that despite widely publicised in the media, no social organisation or the Govt. of Chandigarh came forward to help and assist the Girl in any manner and they allowed the featus to grow to reach such a stage when any abortion could pose a danger to her life. Additionally this also highlights that by disallowing the MTP (Medical Termination of Pregnancy) the Supreme Court might have done more harm to the girl than an ideological justice, especially given the medical findings and lack of support and assistance to the girl to take an informed decision about herself!
For those who are keen on accessing the Supreme Court Final judgement, they may access from here: Final Judgement: Shuchita Srivastavs Vs. Chandigarh Administration
Justice Kannan, a sitting Justice of Chandigarh highcourt, who is also a blogger since 2007 has reflected on this case on his blog which might be of interest to the readers. You may access Justice Kannan's perspective here.

The detailed note from Shri Collin Gonsalves also includes both judgements from the High Court of Punjab & Haryana which elucidates the reasoning for the order later reversed by the Hon'ble Supreme Court as informed in my earlier post. To me in either case, the girl has suffered and would suffer. By allowing the girl to retain the pregnancy, it might have been a win for pro-life activists but the track record so far in this case does give a grim picture of society and social organisations coming forward to support leave the Govt. setup aside where such a terrible incident occured.


Here is the note for your information:

The Right to Abort Vs. The Right to Give Birth

Chandigarh Administration Vs. Nemo

Colin Gonsalves

This note is being circulated so that you may have a look at the facts before the High Court in this case so as to make an informed decision on the merits of the case.

Every woman in India has the fundamental right to abort or to continue with the pregnancy. Her decision is paramount. This is no less true in the case of mentally challenged women. To emphasis, her decision is final. No guardian and no court can take a decision on her behalf contrary to her decision.

The problem lies in determining her point of view. The law requires that she be supported and assisted in every way possible so that ultimately she may make an informed decision one way or the other. If the woman’s point of view is not possible to determine then the guardian or the court must take a decision in the best interest of the woman.

In the Nari Niketan case the legal issues became very complex as consent could not be taken as the woman was not given any support or assistance. Therefore the Chandigarh Administration as well as the Punjab and Haryana High Court proceeded on the basis of rough justice by appointing medical committees to make an assessment of the point of view of the woman as well as her ability to cope with the pregnancy and childbirth. The facts of this case are as given below.

A 19 year old mentally challenged woman kept at Nari Niketan, Chandigarh which is a government institution for destitute women, was raped sometime in March 2009 on the premises by the security guards and conceived. In May 2009 the pregnancy was detected. The rape was widely reported in the media. Despite that no institution or individual came forward to assist or support the woman. In the same month the Director of the Government Medical College and Hospital constituted a three member Board consisting of a psychiatrist, a clinical psychologist and a special educator to evaluate the mental status of the woman. Their report did not suggest anything out of the ordinary except for the observation that “she also cries almost daily”. The Board found that her mental age came out to be 9 years and that she fell in the category of mild mental retardation. A few days later, a four doctor Multi Disciplinary Medical Board was constituted which included a psychiatrist and the Board submitted a report recommending medical termination of pregnancy in the following terms:

“2. There is no doubt that this pregnancy is an outcome of the rape. In spite of being upset over mentally challenged, she has earlier communicated to her examiners about being upset over this incident and has lost interest in certain activities which were enjoyable earlier indicating that she might be mentally upset about this incident.

3. She has undergone a major spinal surgery during her childhood, as she was not able to walk. Although she isnot able to elaborate the details further. The cause of mental retardation in presence of bony abnormalities can have a genetic basis and can be inherited by the baby.

4. Continuation of pregnancy in this case can be associated with certain complications considering her age, mental status and previous surgery. There are increased chances of abortions, anaemia, hypertension, prematurity, low birth weight babies, foetal distress and more chances of operative delivery including anaesthetic complications. Babies who are premature and low birth weight may have organs that are not fully developed. This can lead to breathing problems, such as respiratory distress syndrome, bleeding in the brain, vision loss and serious intestinal problems.

5. Being mildly mentally retarded, she is unable to look after herself and can not fend for herself if left to her own devices. She was aware that there is a child inside her, although she had absolutely no idea how it came to be there. She cannot mother a child. Motherhood is not only holding the child but it is a complex relationship which is beyond her capability and comprehension.

6. Child of a rape victim who doesn't have family support can have social and emotional problems which can jeopardize his complete physical, mental and social well being later.

7. There is clear-cut humanitarian ground as per the MTP Act as pregnancy is a result of rape on the basis of which MTP can be done. The board would like to highlight that MTP can also be associated with some complications which are dependent on the duration of pregnancy, expertise of the doctor performing the MTP and the method used for MTP. Immediate complications included haemorrhage and cervical injuries. Delayed complications include post abortal bleeding, in complete abortion; pelvic infection, peritonitis, and septicemia. The incidence of these complications is reported in 2.9% of cases, although the incidence of severe complications is very rare. The complications can still be minimized by doing a timely abortion under expert doctor. Considering all the above points, the Board is of the opinion that she will not be able to cope with the continuation of pregnancy which in this case is detrimental for her and the child's health, and so recommends medical termination of pregnancy [MTP]”.

Click here for remaining part of the note

Click here for the Part-I of Punjab & Haryana High Court Judgement

Click here for the Part-II of Punjab & Haryana High Court Judgement
regards
SC Vashishth, Advocate

Thursday, July 23, 2009

Employees with Disabilities can be denied promotion on grounds of efficiency, security and safety.

Dear Friends,

We have got in to a habit of opposing any thing that takes away rights of the disabled. But here is the time to think, cogitate and reason out. While on one hand the enabling PWD Act says that Promotion can not be denied on the grounds of Disability, this black judgement says people with disability can be a risk to safety & security to equipments, themself and to the organisation they work for, etc!

Hon'ble Supreme Court has said that Efficiency can be a ground to refuse promotions to those with disability if their disability poses a threat to the security, safety and efficiency. The issue is very sensitive for it goes against the intent of the beneficial legislation and poses threat of stagnation before an employee with disability or those who acquire a disability while in service.

The PWD Act actually mandates a social security system for those who happened to acquire disability or have disability that they don't get stagnated. And it is well known now that with assistive aids and devices, the employees with disabilities are no less than their non-disabled counter parts.

The problem is that there is no rehabilitation programme for those who acquire disability during service and also there is no sensitization in the superior officers who recommend or decide on promotions and sit in the Selection Committees and DPCs!

Even this judgement seem to be going against the spirit of the PWD Act and also doesn't take in to account the role of modern technology in enabling a person with disability while at work. Its easy to label some one unproductive, inefficient, risk for security and safety but equally difficult to remove these labels.

To me, this judgement reflects the attitude of general society toward the disabled. It reinforces a minimum medical standard for promotion even for disabled people. There were already biases and negative attitudes but the law was enabling the employees with disabilities to fight back and seek their rights.

I am sure this judgement would go as a dark phase in the history of disability and development and employees would never be promoted under this garb and would remain stuck at where ever they are.

I fear that under these situations and conditions, the Courts might come against Section 47 also and refuse the employee acquiring disability during service to even continue on the present post in the garb of security, safety and efficiency!! I deeply regret this judgement for I don't find it any way close to the intent of The Persons with Disabilities Act and as well as UN Convention on Rights of Persons with Disabilities!

My experience with The Indian Railways has been very negative so far as the rights of disabled in employment are concerned. At each step they have refused to accommodate people with disabilities in their workforce on some or the other ground and the sector had to knock the doors of the Judiciary. We had favourable judgements from the highly sensitized judges of High Court of Delhi and other high courts but this time the Railways have managed to manipulate and misrepresent the abilities of people with disabilities before the court as well as perpetuated their age old believe that disabled employees pose a risk even in the controlled set up like research laboratories!!

To me, its more a case of improper and misrepresentation of facts and law before the double bench and this is not in the interest of the disability sector. I don't see that after this judgement, the long list prepared by Min. of Social Justice of the Jobs suitable for People with disabilities is of any relevance!!

regards
SC Vashishth, Advocate-Disability Rights

To reach from source click here: Times of India

Efficiency can be a ground to deny promotion to a disabled: SC

Dhananjay Mahapatra, TNN 23 July 2009, 03:43am IST NEW DELHI: In a significant judgment, the Supreme Court has ruled that the government or an employer can deny promotion to a disabled person if they are of the opinion that it can compromise efficiency, security or safety.

A Bench comprising Justices R V Raveendran and P Sathasivam gave this ruling despite being fully aware of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandated that "no promotion shall be denied to a person merely on the ground of his disability". Allowing an appeal of the Union government, the Bench said the 1995 Act would have no significance where the employer stipulated minimum standards for promotion keeping in view safety, security and efficiency.

"If the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then the Act would not be attracted, nor can it be pressed into service for seeking promotion," said Justice Raveendran writing the judgment for the Bench.

Clarifying that it was not against the legislative intention behind the 1995 Act, the SC said: "Where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion merely on the ground of his disability."

The Bench said it was aware of the intention of the Act, that was to give a helping hand to persons with disability so that they could lead a self-reliant life with dignity and freedom. "But, the intention of the Act is not to jeopardize the safety and security of public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability," the Bench said.

The apex court, through this judgment, upheld the prescription of a minimum medical standard for promotion from Senior Research Assistant to Chief Research Assistant in the Research Designs and Standards Organisation of the railway ministry and upheld the Union government's decision not to grant promotion to a disabled person who did not meet the minimum standards.

dhananjay.mahapatra@timesgroup.com

Tuesday, July 21, 2009

The Raped Mentally challenged Girl can continue her pregnancy- says SC

Dear Friends,

This has reference to my earlier post on the subject. Finally, what I guessed turned out to be right. The Court allowed the girl to continue with her pregnancy. A strong argument that "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state" was successfully used.

Another argument "why should poor women, who are found lacking in bringing up their children should be allowed to have babies? if this girl with mental retardation is to be disallowed the motherhood only on this ground that she can not bring her up" was also used.

The life won and won the motherhood! UNCRPD, right to life, Right to motherhood, and social support were all discussed. The arguments were touching and Supreme Court gave in! Congratulations to life and pro-life and pro-right activists and so to the concerned pro-abortion activists as this much publicised matter would eventually provide some support structures to the girl and her coming baby!

regards

SC Vashishth

To read the news from source click here

Raped mentally challenged girl can continue pregnancy: SC

Dhananjay Mahapatra, TNN 21 July 2009, 03:54pm IST

The Supreme Court on Tuesday allowed a mentally challenged orphan girl who was raped at a Nari Niketan in Chandigarh to continue her pregnancy resulting from the sexual assault. The apex court was initially reluctant to interfere with a Punjab and Haryana High Court order directing medical termination of the pregnancy. But it changed its mind after counsel Tanu Bedi crafted her arguments based both on law and emotional grounds.

When the CJI expressed concern as to who would take care of the baby and what would be the health of the newborn, more so since the girl had no one to look after her, Bedi in her 40-minute long monologue repeatedly put these questions to the court — "Why would a girl, even if mentally retarded, be deprived of motherhood which is her right? If her mental age was a consideration for the judiciary to think that she could not take care of her baby, why should poor women, who are found lacking in bringing up their children, be allowed to become mothers?"

She said medical termination of pregnancy could not be done under law without the consent of the mother. "And here is a case where the girl wants to keep her pregnancy. She has no blood relation in the world. Should we not help her to get her first blood relation in the baby she is carrying now," Bedi asked. The arguments not only touched the Bench but every one present in the court as Bedi went on, "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state."

If the Bench was worried about the future of the baby and whether the girl, with a mental age akin to that of a 9-year-old, could take the strain of motherhood, it was supported by senior advocate Colin Gonsalves, who appearing for a social activist cited medical reports that cast doubt on her ability to handle motherhood.

Further Readings: http://timesofindia.indiatimes.com/NEWS/Sunday-TOI/View-From-Venus/Whose-baby-is-it-anyway/articleshow/4820858.cms

Motherhood is for all? Debate rages in SC- Hindustan Times

Dear friends,

A rather tricky legal entangle from High Court now in the Supreme Court. A tussle between pro-life and pro-choice activists and at stake is the life of a 19 year mentally retarded unwed and orphaned girl stranded in a state run home! Any delay can be a peril to her life. And I am sure the delay would not allow any abortion eventually in this legal entangle and pro-life activists are most likely to win - not because of their arguments for life of child and the rights of the girl to have her baby but because of the inherent threat to the life of the challenged girl that an abortion would pose after 20 weeks!!

Links of the News Items
Hindustan Times: Motherhood is for all? Debate rages in SC- Hindustan Times
Indian Express: http://www.expressindia.com/latest-news/terminate-pregnancy-of-mentally-challenged-rape-victim-orders-hc/490988/

Here is the debate that went on on the Facebook for your information:

Subhash Chandra Vashishth
Would this be a travesty of justice and permanent addition to the miseries of the orphaned girl ? The supreme court has to take a decision on urgency taking a holistic approach and giving due emphasis to social, physical, mental capacity and financial conditions! Can't afford to prolong such matters before various courts!

Jo McGowan Chopra
Not that simple, I'm afraid. Leave aside the issue of the baby's right to life (which doesn't seem to even come into the argument), the young woman in question has expressed a strong desire to keep the baby. Are her wishes to be ignored? She is said to have the intellectual age of a nine year old. Nine year olds are very capable of making good decisions, especially if given support by wise, impartial older friends. Does the court feel that all people of limited intellectual ability should be prevented from having children? Are we prepared to make such decisions for other people, particularly when they have expressed their convictions repeatedly and with force?

Jamie Osborne
If the woman is a ward of the State, then what the State says goes. As far as I know, the UNCRPD doesn't ensure that people with developmental disabilities have more say over their possible futures than their guardians...

Subhash Chandra Vashishth
Thanks Jo for your view and I agree with your argument but where is the support by wise and impartial older friends. She is in a state run home for mentally challenged where two security guards were involved in raping her. God knows how many others have been treated there similar way. I am only worried about the future of the child who would have no support but to remain in the same home and the mother may not be able to look after the interest of the child. The fear is what if the child is a girl .... Thanks Jamie for your opinion, the girl is under the guardianship of the state, however, since it was a criminal case, the matter is subjudice hence any action needs to be okayed by Court.


Rama Chari
If the girl has desired to keep the baby, she should be allowed to do so.. She has equal rights like anybody else.

Jo McGowan Chopra
The wise and impartial friends have to be us, I think. Surely there is some NGO in Chandigarh which can help this young woman? And if we are truly concerned about the baby, is killing it the way to express that concern?

Subhash Chandra Vashishth
Between the two groups of Pro-life & Pro-choice activists the young girl is waiting for answers from the Supreme court. May be it is the right time that some NGO then takes her in to their guardianship and provide crucial support. My dear senior colleage Senior Advocate Collin Gonsalves, who incidently also heads HRLN is pro-abortion for he seem to... Read more believe that all those who are showing support to the girl to have a baby will not be found when she would need some support!

Jo McGowan Chopra
Colin may be right. But there are definitely pro-life people who WILL step forward if the baby needs a home. I think my husband and I are too old to do it ourselves, but I think I could find someone willing.

Kavita Agrawal
Another question that comes to my mind is that whether any one is coming forward to take care of the child should the girl be allowed to have the child. It is Ok to talk about society supporting the girl. I don't see any of the so called society people coming forward to take care of the girl and the child. if we had such responsible society probably the rape wouldn't have taken place at all......people would have been more sensitive....

Friday, July 3, 2009

AP High Court questions its own Registrar General on rejecting Blind lawyer for the post of Judge!

Dear Friends,

Another good news. This time from Guntur district of Andhra Pradesh. A blind lawyer R Varahalaswami applied for posts of civil judge but faced rejection on the grounds of disability at the hands of Registrar General of AP High Court.

When challenged in the High Court, he gets a favourable order. The High Court even asked the petitioner to challenge the Recruitment Rules of the AP High Court! (Asked to challenge its own rules!!!!)

Another success after Tamilnadu! I am longing to see such a success in Delhi Judiciary Examination soon. Mind you, Delhi High Court has already amended its rules to accommodate the quota of Persons with Disabilities and reserved posts too some 3-4 years back. But till date no successful entry!!

regards

Subhash Chandra Vashishth

Here is the latest story from Times of India :

HYDERABAD: The AP High Court, on Thursday, accorded permission to a blind man for appearing for a screening test for the post of civil judge and also write the relevant written examination with the help of an assistant.

R Varahalaswami, a 28-year-old visually challenged advocate from Guntur applied for the post of a civil judge in June when the HC notified the posts for filling them up through a screening test and interview.

The judicial authorities rejected his application on June 16 saying that he has hundred per cent blindness and hence cannot be considered for this post. Swami approached the High Court challenging the rejection of his application. B Venkateswarlu, counsel for the petitioner arguing before a division bench comprising Justice Ghulam Mohammed and Justice Vilas V Afzulpurkar, contended that the proceedings of the Registrar General of the High Court were contrary to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1955.

He said that the Act provides for 3 per cent reservations for persons with disability in every establishment of which one per cent should be reserved for persons suffering from blindness or low vision.

He maintained that the Registrar General in his notification issued for the recruitment of civil judges did not prescribe any disqualification to the 100 per cent visually challenged applicants.

The counsel told the court that the Madras High Court has appointed a totally blind person as a Munsif and he was also given posting as third additional district munsif at Coimbatore on June 1, 2009.

The bench directed the Registrar General to allow the petitioner to attend to the screening test scheduled to be held on July 5 and provide an assistant to guide the petitioner during the test. It also told the petitioner to challenge the recruitment rules of the AP High Court in this regard.

Thursday, May 28, 2009

No Teachers for Disabled Students in MCD Schools!

Dear Friends,

For me, this report means, all the efforts of RCI (Rehabilitation Council of India) are taking overseas flights for jobs and this brain drain is surely going to cost us dearly. The manpower trained at the cost of ex-chequer is not being used in India except in a handful NGOs, grassroot organisations and Govt. schools etc. Isn't it an irony that even today we don't have any facility of educating a child with disability in a mainstream school in a city like Delhi, forget about a rural school in Jalpaiguri District of West Bengal!?

If I correctly remember, in my earlier posts of 02 January 2009 and 22 December 2008, there was a proposal from Delhi Government that they would open a Model school in each district both for MCD schools and Delhi Govt. Schools so that the needs of students with various disabilities could be met. However, there seem to be no update publicized by the department nor there is any recruitment of special educators by the Education Department of Delhi Govt. This is no excuse and the Court is rightly shocked over such lapses.

Not only there is an urgent need to sensitize & train mainstream teachers about needs and abilities of children with disabilities but also the Principals, vice principals, Headmistress/ headmasters, Education Officers and supporting staff who often are found unaware about such issues. Ignorance can not be allowed to be a blessing in disguise for them. I have personally received messages from teachers whom I sensitized & trained at DIETs (SCERT) on Inclusive education and accessible school infrastructure, that their Principals / Viceprincipals /Headmistresses were not willing to take in disabled students and sending their parents to find admissions in special schools nearby. There is an urgent need to tackle such a trend among the senior staff at schools.

Appointment of Special Educators in all MCD Schools/ Delhi Cantonment Schools & Delhi Administration Schools will boost the confidence of the School Managers and staff to readily take in more students rather than discouraging them to go away.

Also the process of extending support to such students need to be made more smoother. Currently, as per my information, the concerned class teacher has to line up in the office of the District Education Officer to get the concessions and other facilities for the child with disability in his class while leaving the class of 50-60 unattended students. This is surely discouraging from all angles. May be the Secretary-Education, Govt. of Delhi needs to look at this seriously.

regards
Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521

Here is the shock that nerved the High Court of Delhi :


MCD schools must have teachers for disabled students: HC
HT Correspondent, Hindustan TimesEmail AuthorNew Delhi, May 28, 2009


For 12-year-old Avinash, a visually impaired student of an MCD school in Jahangirpuri, it was smooth sailing from classes I to IV. But since two years, he has been stuck in Class V, as his promotion now is based on performance.

“What could he do? All four years he just came to school and went back and could do nothing,” says lawyer Ashok Aggarwal.

He is pleading in the High Court for a direction to government and MCD schools to appoint special teachers for differently-abled students. “There was no teacher in the school who knew the Braille technique,” Aggarwal says.

As per the MCD’s own admission there are 10,600 such students in schools across Delhi.
A shocked Delhi High Court on Wednesday ordered the MCD and Delhi Government to take immediate steps to appoint adequate number of such teachers.

The court was hearing a PIL filed by Social Jurist, an NGO that had contended that 1,000 schools run by the Delhi government and 1,800 MCD schools do not have trained teachers for disabled students.



Sunday, April 26, 2009

Now People with Mental Disabilities could have access to Banking services!

Dear friends,

Isn't this an irony that after almost a year of putting its own order on its website, Reserve Bank of India did little to get it implemented in various banks. I remember when the order regarding this was accepted was RBI. But it seems that one needs to approach court to get the existing orders implemented.

That seems to be the case here with Sushmaji. Here is the brief news:

Bank access for mentally disabled
21 Apr 2009, 0251 hrs IST, TNN

NEW DELHI: Families of mentally disabled persons can now hope for better access at banks for their wards। The Delhi High Court has directed the Reserve Bank of India to ask all banks in India to accept guardianship certificate issued under the Mental Disability Act for opening of a joint account।

RBI has been asked to issue appropriate guidelines to banks countrywide। The ready acceptance guardianship certificates are issued under the 10-year-old Mental Disabilities Act.

The 1999 law was primarily aimed to facilitate parents and kin of mentally disabled children to prove their legal guardianship. It allowed the setting up of local level committees under the local district magistrates to hear petitions seeking appointment as legal guardians.

The court was hearing a writ petition filed by Sushma Sharma, who had approached the State Bank of India to open an account with her mentally disabled son, Kuldeep, in 2007.

http://timesofindia.indiatimes.com/Cities/Bank-access-for-mentally-disabled/articleshow/4427518.cms

Thursday, April 9, 2009

Delhi High Court gets tough on Railways for failing to fill up the reserved seats of Disabled

Dear Friends,

An update on the case being argued currently by Mr. Mani, my colleage at AICB's Advocacy Committee which incidently I had filed few years back!

The High Court is taking the matter seriously as it is seized with the matter for a long time now. I have a fear- a genuine fear! The recruiting organisations often count the candidates on reserved seats even if they clear on their own merit thereby limiting the recruitment prospects. Thus the reservation policy often works counter-productive.

Till today, I have not come across any case where the person even though higher in the merit and selected in Disabled Quota ever went and challenged as to why he was selected in reserved quota and not on his own merit - for his job is done and he doesn't want to antagonise the employer.

Others never come to know about the waiting list unless they apply for it under RTI. Thus many who genuinely need that reservation to find an employment never get that.

Another area of concern is counting an old employee who was recruited as non-disabled but acquired disability during his service, in disability quota . This also further restricts the quota and doesn't give clear picture of the implementation of the reservation policy of the employer. Well, this needs some serious cogitation!

regards

Subhash Chandra Vashishth
09811125521

Here is the press release :

New Delhi, Monday, 6th April 2009:

While hearing a petition filed by AllIndia Confederation of the Blind relating to violation of persons withdisabilities Act by the Indian Railways, a division bench of the Delhi High Court headed by Justice A. P. Shah (Chief Justice) sharply criticized the railways for not adhering to the court orders of 20th January 2009 directing it to maintain a roster with regard to appointments of disabled persons in Railways.

Earlier, a joint report worked out by the petitioner and the respondent asper the directions of the Delhi High Court had stated that there was awhopping backlog to the extent of 4254 vacancies on which disabled persons should have been appointed as per the persons with disabilities Act, but therailways did not adhere to the provisions of this Act.

Mr. Rajan Mani, counsel for the petitioner, All India Confederation of the Blind, argued that maintaining a roster was the first step towards ensuring reservations for disabled persons. ”Clearly, the Railways is not serious about fulfilling its statutory obligations,” he argued.

The honuorable Chief Justice observed that non compliance of court ordersamounted to contempt of the Court. He directed that Secretary Railways /Member (staff recruitments) be present in person on Monday 13th April 2009.The court also directed Railways to start special recruitment drive toappoint disabled persons by utilizing at least 50% of the available vacancies for this purpose. In a landmark order the court also directed therailways that no recruitment will take place unless provision is made tofill up 4254 vacancies reserved for disabled persons.

Tuesday, March 10, 2009

Need of Sensitive & Aware Judges in the High Courts

Dear Friends,

In the instant case, I am delighted that a senior judge of a High Court had the sensitivity, to use his extra ordinary jurisdiction, to protect the person and properties of a Person with Disability (Intellectual Disability). However, I am also at a loss of words to explain what I feel on the lack of awareness of the National Trust Act 1999 in the judiciary!

I strongly feel that we in the disability sector have to take this responsibility also to spread the message across and yes there is a urgent need to raise the awareness level of the Judicial Officers also especially in various High Courts of India who often use their extra-ordinary jurisdictions and writ jurisdictions to decide matters relating to Fundamental Rights of the marginalised sections of the soceity like the present one.

Appended is the News. To read from Source click on Source: Express Buzz.com regards,

Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521

There is a law to protect the mentally retarded

Scaria Meledam First Published : 09 Mar 2009 01:39:00 AM ISTLast Updated : 09 Mar 2009 01:43:25 PM IST

The ‘Law Watch’ published on January 26, 2009 had reported about the exercise of the extra-ordinary jurisdiction of the High Court by Justice V Giri to appoint a guardian to protect the person and properties of a mentally retarded person since the Mental Health Act did not contain a provision for such appointment and to point out the need to correct the lacuna in the Act by a suitable amendment.

Referring to the action, Dr (Mrs) Rajam P R S Pillay from Thiruvananthapuram has written a letter pointing out that the Court had missed the fact that there was an Act providing the appointment of legal guardians for mentally retarded persons and thus filling the lacuna in the Mental Health Act.

The National Trust for the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 (for short, The National Trust Act), provides for the constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The head office of the Trust is in New Delhi and it has offices at other places in India. The general superintendence, directive and management of the affairs and business of the Trust is vested with a board consisting of a chairman and 20 members. The board should constitute a local-level committee for a specified area. The committee consists of a civil service officer, a representative of a registered organisation and a person with disability.

Section 14 of the Act provides for guardianship.
A parent of a person with disability or his relative can make an application to the local-level committee for appointment of any person of his choice to act as a guardian of the persons with disability. Any registered organisation also can make an application to the local- level committee for appointment of a guardian for a person with disability. While considering the application for appointment of a guardian, the local-level committee should consider whether the person with disability needs a guardian and the purposes for which the guardianship is required and then make recommendation for the appointment of a guardian. It can also provide for the obligations of the guardian.

Section 15 details the duties of Guardian:
Every person appointed as a guardian of a person with disability should, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. Every guardian should, within six months of his appointment, deliver to the authority which appointed him an inventory of immovable properties belonging to the person with disability and all assets and other movable property received on his behalf together with a statement of all claims due to and all debts and liabilities due by the person with disability. Every guardian should also furnish to the appointing authority within three months after the close of every financial year an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.

There is also a provision for the removal of guardian: Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is abusing or neglecting a person with disability; or misappropriating or neglecting the property, they should apply to the committee for the removal of the guardian. Then the committee should, if it is satisfied that there is a ground for removal, remove the guardian, recording reasons for the same and appoint a new guardian or make other arrangements for the care and protection of person with disability. The removed guardian is bound to deliver the charge of all properties of the person with disability to the new guardian and to account for all moneys received or disbursed by him.

The P R S Pillay Memorial Trust of which Dr Rajam is the managing trustee, is the state nodal agency centre of the National Trust which has constituted the local-level committees in all districts under the chairmanship of District Collectors.