Monday, February 22, 2010

Supreme Court of Zimbabwe rules in favour of Independent Voting rights for PWDs


Political Editor

BOOSTED by the recent Constitutional Court ruling nullifying a section of the Electoral Act that required polling officers to assist visually impaired voters to cast their ballots, the local disability movement hopes that the proposed new constitution will guarantee them wider rights.

The Supreme Court, sitting as a Constitutional Court, recently declared Section 60 of the Electoral Act null and void saying it violates the principle of the secret ballot, in a landmark case brought up by Mr Simon Mvindi, a visually impaired voter, and five others.

The disability movement views the milestone ruling as the first step in upholding the voting and more rights of the blind. People living with disability hope the ruling would stimulate action towards protecting the voting rights of other disabled groups, including the deaf, dumb, the physically handicapped and persons of short stature.

Welcoming the January Constitutional Court ruling on blind voters, Mr Nyamayabo Mashavakure, a visually impaired teacher, said the basis for the holistic protection of the disabled's rights must be enshrined in the new Constitution.

He said while the ruling was plausible, political parties themselves and the Government through the electoral authority, must consider people with different disabilities in developing political communication materials, such as producing television campaign messages in sign language or posters in Braille.

"The people who approached the court on this matter did a very good job," said Mr Mashavakure.

"The ruling is good, not only for the visually impaired but also for everyone who is living with disability. We hope as we start drafting the new Constitution, we will come up with clear guarantees on the wider rights of the disabled, not just voting rights."

It is estimated that 10 percent of any country's population is disabled, which means that about 1,3 million Zimbabweans have various forms of disability.

The country is in the process of coming up with a new constitution in terms of the Global Political Agreement. Although lack of funding has hampered progress, a significant amount of work has been done since the process started early last year with the appointment of the Parliamentary Select Committee, which is charged with leading the process.

Outreach teams are expected to be dispatched across the country in the next two months to collect the people's views on the proposed supreme law, providing an opportunity for special interest groups like disabled people to contribute.

In his court papers filed in the Supreme Court case, Mr Mvindi recalled that on 29 March 2008 he, accompanied by his wife, went to a polling station hoping to cast his ballot in the harmonised election. However, he said he was taken aback when polling officers told him that they, and not his wife, could legally assist him in the voting process.

"I must hasten to point out that with the marital bond between my wife and I, I am not able to trust anyone more than I trust my wife," he said in the papers.

"She has been by my side throughout the whole period we have been married and from the time I lost my sight completely, she has acted as an aide in all my needs. To my utter shock and surprise, I was denied the right to be assisted by my wife."

The Constitutional Court heard his plea and ruled in his favour and his peers. The full bench unanimously agreed that the section of the Act violated the right of the visually impaired to voting by secret ballot and declared it unconstitutional.

"It is ordered that Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared to be ultra vires sections 23A (2) (a) of the Constitution of Zimbabwe. Accordingly, Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared null and void, and is struck down," ruled Chief Justice Godfrey Chidyausiku.

Deputy Chief Justice Luke Malaba and Justices Wilson Sandura, Misheck Cheda and Paddington Garwe concurred.

Advocate Happias Zhou, who represented Mr Mvindi and others, said although his clients were blind, they were not illiterate. He said that the notion that the blind cannot exercise their voting rights other than in the presence of the persons stated in Section 60 of the Act was clear interference with the secrecy of the vote. He suggested that ideal secret voting for the blind people would allow voters to be accompanied by people they trusted.

It was submitted that in other countries, the visually impaired vote on their own on tactile Braille ballots, enlarged print, electronic ballot and other means.

The Minister of Justice and Legal Affairs, Patrick Chinamasa said he appreciated the need for the changes, but the electoral authority does not have funds to ensure that the special ballot papers, electronic ballots are made available.

Mr Mashavakure said most people who are visually impaired shunned voting for fear of possible political reprisals because the Electoral Act required them to disclose their political preferences to polling officers, who are essentially strangers to them.

He said if the Government does not have resources to provide special voting materials for the blind, it must allow the visually impaired to be assisted by their own aides during voting, even on common ballots. This, he said, removes the expense from the Government and places it on the disabled voter.

He said the new constitution must have a non-discriminatory disability clause as opposed to the current one, specifically Section 23 of Constitutional Amendment Number 17, which outlaws discrimination on the basis of physical disability only.

"Physical disability is not the only form of disability," he argued.

"There is also the question of language. If you look at the Kariba Draft for instance, it gives languages that are spoken in the country like Shona, Ndebele, Venda and others. However it leaves out one important language - sign language."

He said the National Constitutional Assembly draft has also its limitations.

"Its disability clause, which is Section 41 I think, gravitates towards the medical model of disability. It suggests that people living with disability are sick or something like that, but it must be known that they were ill at the point that caused their disability, but are now fine. So the constitution must be general in its articulation of disability, not specifying things like 'physical disability' or 'protecting oral languages', excluding sign language."

Mr Tsarai Mungoni, programmes officer (research and advocacy) at the National Association of the Societies for the Care of the Handicapped (Nascoh) said disability rights must be clearly spelt out in the Bill of Rights, adding that the Government must assist the disabled with social grants.

"Disability is expensive to manage," he said, "so people with disability need a social protection scheme in form of a disability grant, to be given to any disabled person, whether they are employed or not. This will serve to mitigate against disability-induced poverty. The Constitution must also clearly provide for affirmative action in terms of economic empowerment, education and representation in private and public sectors."

Mr Mungoni, who is a member of the Thematic Committee on Disability in the Select Committee, decried the fact that out of a population of 1,3 million disabled people in the country, about 20 of them are in the sub-committee of the handicapped.

He added that even in Parliament, there is no MP representing the disabled.

"That is where it starts — lack of representation," he said. "But we are saying the constitution must state a quota to be held by the disabled in Parliament and other critical areas."

Thursday, January 21, 2010

Delhi High Court disposes off the PIL in favour of Inclusive Education in Govt. Schools in Delhi

Dear Friends,

So finally the Delhi High Court has disposed of the Public Interest Litigation No. W.P.(C) 6771/2008, Social Jurist Vs. Govt. of NCT of Delhi & Anr, yesterday i.e. on 20.01.2010. The final order merely disposes off the petition while making its earlier directions final which need to be implemented and the Committee appointed for the purpose will oversee its implementation.

This PIL has brought to sharp focus the precarious condition of the disabled children in the Government Schools. The situation was getting worse as disability was left to the NGOs to handle as if the state only had a role of giving out doles to few NGOs working on this. This led to uprooting of many children with disabilities especially the Visually impaired and the Hearing impaired to cities where some facilities existed. While children with other disabilities suffered in silence with no school ready to take them for they had no infrastructure or support to teach them.

The judiciary has restored the faith of people with disabilities, their parents, families, friends and supporters, NGOs that with this positive judgement, situations will change for them in the Government Schools too and inclusive education will not get restricted to ideological books only.

If this judgement is to be implemented, it would require a large number of special educators, therapists and supporting staff trained in sign language, braille and teaching techniques to include all by using multi-sensory methods. A daunting task both for the Govt. and as well as Rehabilitation Council of India. RCI will have to make sure that quality of training is maintained on highest standards in all their affiliated colleges, institutes. In the past there have been several cases where there were questions raised on quality of training in certain institutions. This would be necessary to protect the future of children with disabilities in mainstream (inclusive) education.

While the Education Department of Delhi Government has initiated the process of changing the Recruitment Rules to include Special Educators, other rehabilitation professionals have not been thought about as yet. To make inclusive education a reality, children with disabilities would require support of therapists, rehabilitation professional among all which should be considered by the Government.

Now with Mr. Agrawal been appointed Chairman of a Committee to oversee implementation of Right to Education of Disabled Children, these issues could be taken up with the Committee and necessary inclusion of more rehab professionals could be effected.

Recently, Central Board of Secondary Education (CBSE) has also indicated through a Categorical Circular that they would go to the extent of de-recognizing the Schools if any school dared to deny admission to a child with disability. This is a huge step in policy as well as in the domestic law of India - a step further to realize the mandate of UNCRPD.

We hope we will together face the challenges that might come in the way of realizing inclusive education a reality to make our nation a happier, welcoming & rights based place for its diverse population including those experiencing disability of any kind.

Regards

SC Vashishth
Advocate-Disability Rights
subhashvashishth@gmail.com
09811125521

Govt. brings in Notification to give equal benefit under PLI Scheme, but is that equal indeed?

Refer to my earlier post on Government seeking six week more time to bring in an appropriate insurance scheme which doesn't discriminate employees with disabilities.

After a prolonged period finally they came up with a notification on the last date of hearing which provides the maximum insurance limit up to 10 lacs as available to other employees. You can view the notification of Department of Post by clicking here: Notification dated 04th January 2010

In other words with this notification the maximum limit of insurance for physically handicapped persons has been made equal with maximum limit prescribed under Rule 3 of POIF Rules and revised from time to time to ensure non-discrimination and equality with other employees.

Consequently, POIF Rules have been amended to include Physically Disabled employees also. However, what remains to be seen is that the extra premium being charged from the employees with disabilities has yet not been addressed which would actually go on to prove that the insurance scheme is still discriminatory against employees with disabilities.

I am hopeful that they would address this lacunae also and not ask employees with disabilities to cough up extra premium for an insurance amount that is equal to other employees.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights

Friday, November 13, 2009

Railways continues to discriminate against Persons with Disabilities- Case of Jayanta Khamari

Dear Friends,

Laws fail to work when social attitudes and mindsets are rotten, diseased and highly biased towards persons with disabilities. Defect, abnormality, less fortunate, to be dealt with pity and not equal are what prevalent in our society still!

To top the list of such organisation is Indian Railways. They refuse to abide by law. Railways is a sea with so many divisions, branches, regions and due to lack of a uniform, transparent and effective system in place, rights of people get often abused at the whims and fancies of certain officials who continue to harbor such attitudes against the citizens with disabilities. This is precisely the reason that the Railways have not been able to fill up their backlog of jobs for disabled persons in a transparent manner despite Delhi High Court orders on a PIL filed by AICB, Delhi.

The present case is of Shri Jayanta Kumar Khamari, who wanted to join Railway Engineering Service and has been forcibly given Military Engineering Service. Result declared by Railways indicates his name on page 3 rank 38. Result 2007. He is still awaiting his choice posting even after two years of clearing the Indian Engineering Service. Reason- he doesn't have three fingers in the right hand!

Any physiotherapist/occupational therapist or orthopedic surgeon would opine that if one has thumb opposition available in the hand, majority of jobs requiring fine finger dexterity can be easily performed. Also in the present case, Jayanta functionally uses his left hand as efficiently as his right hand but Railway believes he can not work efficiently and his disability will affect his work. So they came up with a plea that they don't have any post identified for such candidate.

And mind you, the gentleman is working as Junior Engineer with CPWD for past several years with no adverse remarks on productivity due to disability!

High Court of Orissa has categorically expressed in its order, "We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"

Hope good sense of law and human rights will prevail and Railways will make itself more receptive to diversity (read) employees with Disabilities to be contributing members of their workforce.

warm regards

Subhash Chandra Vashishth
Advocate & Consultant -Disability Rights
0981125521, subhashvashishth@gmail.com

Click here to read from Source: Even Rahul Gandhi Failed Me

Jayanta Kumar Khamari, an Indian Engineering Service graduate, is fighting for a job in the Indian Railway Service of Engineering. He says he was assured by many leaders, including Gandhi, but the Railways denied him his choice as he doesn't have three fingers on his right hand

Rahul Gandhi, the scion of the most powerful family in the country, can give cold feet to his veteran political opponents. Yet, there are things which are beyond his reach too. Ensuring a job with the Indian Railways, for instance.

That too, despite a High Court order in support of the applicant.

Jayanta Kumar Khamari, from Bhubaneswar, met the Congress general secretary in hope that he will be able to get justice with the young leader's intervention. However, even after receiving assurances from Gandhi, the 35-year-old Indian Engineering Service graduate continues to work in the Military Engineering Service, despite achieving 35th rank in the merit list that qualifies him for the Indian Railway Service of Engineering (IRSE).

Handicap trouble

Even the Railways has no qualms about Khamari's qualification. The problem lies in his right hand that is devoid of any fingers except for the thumb. Khamari suffered from a consumption disease in his childhood, thereby causing the amputation of four fingers in his right hand.

However, Khamari turned ambidextrous and is now able to use his left hand as efficiently as his right. But, the Railways believes the disability could become a hurdle in his way of achieving success as an engineer and therefore, he was refused his preferred choice of service.

"I appeared before the medical board, which recommended me for field work after examining my hand. The Railway Board was the nodal authority for appointment and it did not take up my case, as per my choice for the Indian Railway Service of Engineers," Khamari said.

For the last two years, Khamari has been waging a pitched battle against the alleged discrimination against him.

Even ten years of Khamari's experience as a junior engineer with the Central Public Works Department (CPWD) failed to convince the bosses at the Railway Board to allow him to achieve what he truly deserved.

In the hope that the 'most powerful leader in the ruling party' (Rahul Gandhi) will ensure his choice of job, Khamari met him in August last year. But contrary to his belief in the omnipotence of the scion of the Nehru-Gandhi family, nothing happened.

Not only Gandhi, many others, including the Minister of State for Railways Naranbhai Rathwa, did not pursue Khamari's case.

"I met the chairman and secretary of the Railway Board. I also met Sanjay Mitra, joint secretary and Satyanarayan Sahu, director at the Prime Minister's Office but even they could not help me," Khamari told MiD DAY.

In court

The young engineer, however, did not lose hope and moved court against the alleged discrimination against his disability by the Railways. He lost in the lower courts, initially, yet continued his battle.

Now, Khamari has the backing of a favourable order by the Orissa High Court and an equally damning assessment of the discrimination by the Railways from the Chief Commissioner for Persons with Disabilities (CCPD).


Long fight


Apart from a frustrating wait for what he deserved, Khamari had to face several other hardships to shuttle between Bhubaneswar and Delhi.

"When my case was pending with the CCPD, I stayed in Delhi for almost two months. During that period, almost for a month, I stayed at Jagannath temple, near IIT. And then with my friends in Jia Sarai, Katwaria Sarai and Ber Sarai," said Khamari. But, now with the High Court by his side, it seems that Khamari has finally got his 'hand of God'.

What the law says

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the appropriate government in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:
i. Blindness or low vision
ii. Hearing impairment
iii. Locomotor disability or cerebral palsy, in the posts identified for each disability.

The proviso to Section 33 of the Act states the appropriate government body is at liberty to exempt any establishment from the provisions of this section by notification. From the order of the Chief Commissioner it appears there is no notification exempting the Railway from the purview of Section 33 of the Act.

The High Court said...

"We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Accordingly, we direct the Railway Board to issue necessary orders in favour of the petitioner in terms of the order of the Chief Commissioner within a period of two months from the date of receipt of this order." Justices BP Ray and BP Das, September 17, 2009

Monday, November 9, 2009

Awaited Judgement on Driving Licences to the Deaf

Dear All

I am eagerly waiting for the judgement but each time the Learned ASG has been seeking time on behalf of Govt. of India to frame rules!

Waiting for the day when he will come in the court with amended rules!

regards

Subhash

India's deaf may get licence to drive

The Government of India is considering issuing driving licences to hearing impaired people by amending the Motor Vehicles Act

Published on 11/9/2009 2:08:16 PM
By Kanu Sarda

New Delhi: India is one of the few countries in the world where the hearing impaired are not allowed to drive. But this may change soon, with the government informing the Delhi High Court it is considering changing its rules.

"We are considering issuing driving licences to hearing impaired people and thinking of amending our rules and regulations," Additional Solicitor General AS Chandiok informed a division bench of the High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

The court has granted the government three months' time to take a decision and posted the matter for December 16.

At present, the Motor Vehicles Act prohibits the deaf from obtaining a driver's licence on the ground that they could be a source of danger to the public. There is around 50 million hearing impaired in India.

The court was hearing a public interest petition by the National Association of the Deaf (NAD), seeking a direction to quash the requirement of having no hearing impairment for the issuance of a driving licence.

According to the NAD, the deaf are allowed to drive all over the world except in 26 countries including India.

"The only reason why India is not willing to issue licences is that Indian vehicles lack the special gadgets that other countries' vehicles have. But we are considering the same and hoping that we will be able to amend some rules," Chandiok informed the bench.

According to medical experts, those who can hear up to 60 decibels with the use of a hearing aid can be permitted to hold a driving licence for private vehicles, while those with a hearing level of up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

According to the petitioner, even the Delhi Police website indicates that deaf people can drive and states, "There is no reason why a deaf person cannot drive a private motorcar. However, the possibility of additional rear vision mirrors may need to be considered."