Wednesday, March 10, 2010

Supreme Court: J&K High Court was insensitive to Teacher with Cerebral Palsy [Judgement Included]

Court: Supreme Court of India

Bench:  Altamas Kabir, Justice and  Cyriac Joseph, Justice

Case No. : Civil Appeal Nos. 2281-2282 OF 2010, (Arising out of SLP(C) Nos.10669-70 of 2008)

Case title: Syed Bashir-ud-din Qadri  Vs. Nazir Ahmed Shah & Ors 

Date of Judgement: 10.03.2010

Brief of the Case

This order from Hon'ble Justice Altamas Kabir,  Supreme Court of India, is remarkable in many sense. The order is indicative of the apathy of certain implementing authorities and lack of awareness and sesitivity even at the level of the High Court when it comes to ensure equal opportunities and rights to Citizens with disabilities. 

Expressing concern over the shabby treatment meted out to disabled persons while considering them for government jobs, the Supreme Court has said these cases must be handled with sensitivity and not with bureaucratic apathy. 

Dealing with an appeal filed by a person with cerebral palsy, a Bench of Justices Altamas Kabir and Cyriac Joseph said: “It has to be kept in mind that this is not one of the normal cases relating to a person's claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity.”

Syed Bashir-ud-din Qadri, a B.Sc. graduate, was appointed Rehbar-e-Taleem (teacher) in a government school at Pulwama by the Jammu and Kashmir government under the merit quota for physically challenged candidates. Two committees appointed by the government also approved his appointment after noting that he was capable of discharging his duties. But, acting on a petition from Nazir Ahmed Shah, the High Court set aside his appointment.

Allowing the appeal against this judgment, the Supreme Court said: “The appellant is a person with cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds.” The Bench pulled up the High Court for ordering his dismissal, and directed his reinstatement forthwith with all notional service benefits.

Writing the judgment, Justice Kabir said: “It is unfortunate that in spite of the positive aspects of the appellant functioning as Rehbar-e-Taleem and the clear and unambiguous object of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, the High Court adopted a view which was not compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the Act or even the provisions of Sections 22 and 27 thereof.”

The Bench said: “Instead, the High Court chose a rather unusual method in assessing the appellant's capacity to function as a teacher by calling him to appear before the court and to respond to questions put to him. The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the court to answer questions.”

As disability did not impede the appellant from discharging his duties, the High Court ought not to have directed the termination of his services, the Bench said.  

Read the Order Below or download Here

 

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."

Delhi High Court relief on disabled quota suspended by Supreme Court


 Source: IANS New Delhi, Nov 6, 2009 (IANS) 

The Supreme Court Friday suspended a Delhi High Court order to the union government to provide three percent reservation in state jobs to physically challenged persons as per a special law that accords one percent quota for visually impaired candidates.

A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam and Justice Deepak Verma suspended the high court order saying: “We are staying the high court directions. They are prima facie incorrect.” The bench, however, clarified that it was not suspending the law for three percent reservation in state jobs to physically challenged persons, the Disabilities Act. 

The apex court gave the order on an appeal by the union government challenging a Delhi High Court order, which had directed the centre to fully comply with the Disabilities Act and reserve three per cent seats for disabled persons according to its 1996 notification. 

 While granting the relief to the union government, the bench refused to heed the plea of National Federation of the Blind which wanted that the High Court order be allowed to operate. Advocate Pratiti Rungta, himself visually impaired, who appeared for the federation, opposed the government’s appeal but the bench declined it saying “it is not possible to continue with the high court order.” 

Rungta’s failed to convince the bench that no recruitment has been made under the Act. Additional Solicitor General Indira Jaising contended that the directions of the high court were not workable. The apex court had earlier directed the government to file a detailed status report regarding the extent to which the posts had been identified and filled up and also what steps had been taken to fill up the vacancies that had arisen since the Act has gone into force in 1996. The government is yet to file the status report.

Friday, October 9, 2009

Govt. buys six more weeks to amend postal insurance rules to stop discrimination against the disabled employees

Dear Friends,

This is in continuation to my earlier post on the discriminaton in Postal Life Insurance to the disabled wherein Hon'ble High Court of Delhi directed the Govt. to explain their stand. There have been some development on 07 October 2009 which are detailed below. I appreciate Ms. Sangeeta Sharma for covering this in her article for UNI and published in Indlaw.news.

regards
Subhash Chandra Vashishth, Advocate

 
Govt seeks 6 weeks time to amend insurance rules for disabled
07th October 2009

The Centre today sought more time to amend its insurance rules for disabled to bring them at par with the insurance rules of others.The lawyer appearing on behalf of Solicitor General (SG) Gopal Subramanium told the bench, comprising Chief Justice A P Shah and Justice S Murlidhar, that the Government has had talks with the Chairman of Life Insurance Corporation and some changes have been made in the policy which governs the Insurance of the disabled.

The LIC will consult the Actuaries, ‘who will also consider the amendments and get back to us, therefore, we need at least six weeks time to make such amendments,’ the lawyer said. The Delhi High Court had earlier directed the Centre to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy, which will have no disparity for the disabled.

The Court had directed the ASG to consider the rules again and draft a policy in a manner that it should not be discriminatory and must consider the distinction between various types of disability as well as mortality factor caused by it.

‘Moreover, life expectancy and other factors should also be taken into account,’ Justice Shah said. A petition was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said, ‘Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only.’

The lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On the Rights for Persons with Disability (UNCRPD) prohibit discrimination in the insurance policy.

Ms. Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious. She told the court that there is no data available in India to show the cause of death as the death certificate des not mention it. Also, there is no data to suggest that disabled are more prone to accidents, so why they have to pay more to get a less insurance cover, Ms Bhagat said.

UNI 

Monday, September 21, 2009

When Deaf People could drive all over the World why not in India?

Dear Friends,
No wonder people often exclaim on the road "are you deaf?" when they don't get a side while overtaking another vehicle. Well, this long settled notion is going to wither away in India while we are moving towards more equalitarian and rights based society with this Writ Petition not only being admitted by the Delhi High Court on the petition filed by my colleagues at HRLN, more particularly Mr. Pankaj Sinha, the young lawyer, but also calling upon the Government of India to respond as to why this Writ not be issued and made absolute in favour of the petitioners.

You will be surprised to know that earlier also such attempts were made at Delhi High Court by the NGOs but the petitions were dismissed at the admission stage itself. But this time, a well drafted and well researched document was prepared by the lawyers and also perhaps first time articles of UNCRPD were used to articulate the injustice being meted out to this segment of the disabled fraternity in India.

World over the deaf are allowed to drive vehicles like any body else with some additional conditions of an extra back view mirror. This is with the scientific rationale that driving involves almost 80-90% visual activity and Deaf could be safe drivers without any risk to fellow travellers. Additionally with many new gadgets coming in the market to compensate the loss of hearing with other sensory organs, this discrimination is of course against the very principle of equality that Constitution of India grants to all its citizens including those experiencing hearing difficulties.

The Writ Petition being a PIL (Public Interest Litigation) is going to have far reaching consequences for the Ministry of Transport for they have to evolve now to address this issue and change all their laws, rules, procedures, forms, medical statements etc to include this segment.
I congratulate NAD (National Association of the Deaf), Advocate Pankaj Sinha and Senior Advocate Collin Gonsalves and 50 million deaf Indians on this success. We have moved a step further towards realising equality for all in India.



The news coverage:

'Should deaf drive? Centre says yes; HC to take call'

Why should an Indian deaf national be denied this right? 
COLIN GONSALVES, Senior lawyer
NEW DELHI:

Here's some good news for around 50 million hearing impaired people in the country.
The Centre has submitted before Delhi High Court that it is considering allowing those suffering from hearing disability to obtain a driving licence.

The archaic Motor Vehicles Act prohibits the deaf from obtaining a drivers' licence, saying they could be a "source of danger to the public".

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

A Bench of Chief Justice Ajit Prakash Shah and Justice Manmohan on Friday recorded the statement by Additional Solicitor General A.S. Chandiok appearing for the Centre that they are considering all the relevant materials and will make appropriate recommendations on issuing driving licences to the hearing impaired. The process is set to be completed in four weeks.

Road Transport and Highways Ministry counsel Jyoti Singh said medical experts are of the view that those who can hear sound up to 60 decibels with the use of hearing aid can be permitted hold a driving licence for private vehicles, while those with hearing level up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.
Singh said a specially constituted high-powered committee of the ministry will soon meet to discuss the issue.

DELHI COPS BACK PLAN

The PIL also draws strength from views expressed by Delhi Police on its website that deafness does not render one incapable of driving safely. "There is no reason why deaf people should not be allowed to drive,"the website says. But it suggests use of additional rear-view mirrors by this category of drivers The NAD said the deaf are allowed to drive all over the world, except in 26 countries. In the UK, Australia, Germany, Belgium, Thailand and Malaysia authorities insist on special double rear-view mirrors. In Malaysia and Sri Lanka this category of drivers are to indicate the handicap by putting a sticker on the back of the car so that other drivers do not hoot at the driver. But they are not allowed to drive commercial or passenger vehicles.

Senior lawyer and human rights activist Colin Gonsalves, who represented the NAD, told the court that discrimination against the deaf in India was a clear violation of Article 14 of the constitution.

"A deaf person with an international driver's licence is able to drive in India, then why should an Indian deaf national be denied this right? The Constitution demands equality for all before the law," he said.

Thursday, September 17, 2009

Reservation on single post would amount to 100% Reservation

Dear Friends,

Many of us in the Disability sector believe that 3% reservation for the PWD can be claimed on all posts including single posts. However, the courts have several times clarified that reservation on the single posts would be discriminatory to others and is against the provisions of Constitution of India as it will tantamount to 100% reservation.
regards

SC Vashishth
To read from source, click here

Delhi HC dismisses plea for reservation to single post of VC
9/16/2009

The Delhi High Court dismissed the petition of a person who sought the court’s intervention to grant disability reservation to him in the appointment of Vice-Chancellor (VC) in newly-formed 15 universities.

A bench, comprising Chief Justice A P Shah and Justice Manmohan, dismissed the petition as withdrawn as there was only one post for the VC which could not be covered under any reservation clause.

Petitioner P R Ramanujam, who is suffering from locomotive disability and working as a professor of distance education and director of staff training and research institute in IGNOU, applied for the post of first VC in the newly formed 15 universities established under the Central University Act, 2009.

Mr Ramanujam contended that there was a statutory mechanism providing three per cent reservation to persons with disabilities, therefore, his name should be considered under the reserved category. Additional Solicitor General A S Chandhioke and Government Standing Counsel Ravinder Agarwal told the court that in this case reservation of any type could not be granted because there was only one seat for the post of VC and if reservation was granted, it would mean 100 per cent reservation. On this, the petitioner withdrew his petition.
UNI