Disabled Students must get same admission benefits as SC/ST, rules Delhi HC

Court:          Delhi high Court

Bench:         Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw

Case No.:     Writ Petition (C) No. 4853 of 2012 

Case Title:    Anamol Bhandari Versus Delhi Technological University

Date of Judgement:  12 September 2012

Brief:

In a path breaking judgement, a Bench of Delhi High Court has held that  the people with

disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandates, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates.

This puts to rest the debate of whether Constitutions favours only the SC/ST and not disabled since Disability is not specifically included in the Constitution.

Holding that people suffering from disabilities are also equally socially backward, if not more, as SC/ST candidates, the Delhi High Court has directed the Delhi Technological University (DTU) to provide the same concession in marks for admitting disabled persons as applicable for SC/ST candidates.

“We hold that the provision of giving only 5 per cent concession in marks to persons with disabilities (PWD) candidates as opposed to 10 per cent relaxation provided to SC/ST candidates is discriminatory and PWD candidates are entitled to same treatment,” a bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw said.

The court’s order came on a petition by Anamol Bhandari, a physically disabled student, who challenged the disparity in treatment between the two categories.

In his petition, Bhandari said he had passed his CBSE exam with 52.66 per cent. He said DTU had fixed its cut-off for general candidates at 60 per cent but had provided a relaxation of 10 per cent for SC/ST candidates and 5 per cent for PWD candidates.

The petitioner said though he had cleared his All India Engineering Entrance exam with a rank sufficient to gain admission to DTU, he could not get admission on the basis that his Class XII marks did not meet the cut-off.

He said if the relaxation given to PWD candidates was on  par with SC/ST candidates, then he have been eligible for admission.

The university contended that they were free to frame their own admission guidelines, being an autonomous body. It argued that the petitioner was aware when applying that he would be eligible for a 5 per cent relaxation.

However, when the bench asked the counsel for DTU whether there was any rational basis for fixing the limit of relaxation at 5 per cent for PWD candidates, no clear answer was given and the counsel merely said it was a “policy decision”.

For detailed judgement passed on 12 September 2012 in this case titled Writ Petition (C) No.4853 of 2012 ANAMOL BHANDARI Versus Delhi Technological University, please click here or read the Order embedded below:

 

Delhi High Court directs Private Schools to appoint 2 special educators

Dear colleagues,

Division Bench of the Delhi High Court has directed private schools to appoint two special educators to respect the mandate of the RTE Act. The court had already directed the Govt. of Delhi to appoint 2 Special educators in all government schools. This is a welcome step and calls for drastic changes in the way we look at education of children with disabilities.

Here is the news report from the Time of India.


'Special educators must in private schools’
Abhinav Garg, TOI



NEW DELHI: Disabled students enrolled in private schools received a unique gift from the Delhi high court on Teachers' Day - special educators.

A division bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed all private unaided schools in the capital to hire two qualified special educators as per the mandate of the Right to Education Act (RTE).

The bench made it clear that special educators are required not just in government-run or aided schools but should also in private schools as they too enroll disabled students with special needs. HC was hearing a plea by civil rights organization Social Jurist which sought to extend appointment of special educators to private schools.

The court has already directed the government schools to appoint special educators for disabled children in 2009. It re-iterated the ruling earlier this year while hearing a contempt plea against the government for its failure to fill up vacancies for special educators.

The PIL, filed through advocate Ashok Agarwal, highlighted that 2039 unaided private schools and 258 aided schools lack basic physical and academic infrastructure, including special educators for those suffering from blindness, hearing impairment or mental retardation. "The failure on the part of these unaided and aided schools to have these facilities in place violates the fundamental and human right to education of the children with disabilities as guaranteed to them by the Constitution, RTE Act (2009) and UN Convention on the Rights of the Persons with Disabilities (2008)," the PIL had argued.

On its part, the state government agreed with the need to have special educators and said all the unaided private schools of Delhi are required to make provisions for special educators for children with special needs. Earlier HC had directed the action committee of unaided private schools to file affidavit explaining about their position on recruitment of special educators, availability of provisions of ramps and special toilets etc. for the children with disabilities.

Source: Times of India

Deaf and Speech Impaired can be Key Witnesses in Criminal Trial : SC

Dear Friends,

I firmly believe that exposure and practice can make you aware of things you wouldn't have ever believed or done. If you remember the much hyped Driving Licence for the Hearing Impaired case that I updated earlier on this blog several times on  20 September 2009,  09 November 2009 and 15 February 2011,  Hon'ble Justice Dipak Misra, then Chief Justice at the Delhi High Court headed the bench that heard the case. In the instant case, the deaf were declared competent to drive the private vehicles if they cleared the driving test like any body else by the Hob'ble Court.

Subsequently Chief Justice Dipak Misra  was elevated to the Hon'ble Supreme Court. The learnings from the above Deaf Driving case found their reflection in the judgement below that was pronounced by a bench of Justice B.S. Chauhan and Justice Dipak Misra yesterday (i.e. 21 May 2012) in Criminal Appeal No. 870 of 2007 titled State of Rajasthan Versus Darshan Singh in Hon'ble Supreme Court.

In the instant case the High Court  of Judicature for  Rajasthan at Jodhpur set aside the judgment and order dated 15.1.2003 of the Additional  Sessions  Judge  (Fast  Track)  Hanumangarh, convicting the respondent  of  the offences punishable under Section  302  of  Indian  Penal  Code,  1860 and imposing the punishment to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default to further undergo one month simple imprisonment. This was on the basis of the evidence of the sole eye witness who was speech & hearing impaired and was the wife of the victim. She gave her evidence with the help of her father who acted as her interpreter.

The High Court did not found favour with the evidence of the sole eye witness as the court it raised questions over the competence of the deaf witness and process of recording the evidence and that the father of the eye witness who acted as interpreter was an interested party in the case.

Good points in the Judgement: 

Though I don't agree with the language used to refer to Speech and Hearing Impaired persons- where both our media and judiciary need to sit and take a note of, I am happy that the judgement looks promising and is a step towards progressive realization reiteration from the apex court of India that the deaf or the hearing impaired persons are no less competent when it comes to act as star witness in a criminal case.

Stating that a court can bank on a "deaf and dumb"  (read hearing and speech impaired) as a star witness in a criminal trial, the Justices refereed to Evidence Act that has changed to embrace the scientific fact that such people are "generally found more intelligent and susceptible to higher culture than one was once supposed". Section 119 of The Evidence Act mandates that a person unable to speak can use signs or write his or her testimony, which would be deemed oral evidence, if made in open court.

The court further explained, "Language is much more than words... A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures."  It further observed, "Like all other languages, communication by way of signs has some inherent limitations since it may be difficult to comprehend what the user is attempting to convey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his or her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.

The operative paras of the judgement

"21. To sum up, a deaf and dumb person is a competent witness.   If in the opinion of the Court, oath can be  administered to him/her, it   should be so done.  Such a witness,  if able to read and write, it is   desirable to record his statement giving him  questions in writing and  seeking answers in writing.  In case the witness is not able to read  and write, his statement can be recorded in sign language with the aid  of  interpreter,  if  found  necessary.   In  case  the  interpreter  is  provided, he should be a person of  the same surrounding but should  not have any interest in the case and he should be administered oath."

22.    In the instant case, there is sufficient material on record that Geeta (PW.16) was able to read and write and this fact stood proved in the trial court when she wrote the telephone number of her father. We fail to understand as to why her statement could not be recorded in writing, i.e., she could have been given the questions in writing and an opportunity to reply the same in writing.

23. Be that as it may, her statement had been recorded with the  help of her father as an interpreter, who for the reasons given by the  High Court, being an interested witness who had assisted during the  trial,  investigation and was  examined without administering oath,  made  the  evidence  unreliable.  In  such  a  fact-situation,  the  High  Court  has  rightly  given  the  benefit  of  doubt  and  acquitted  the  respondent.

24.     We are fully aware of our limitation to interfere with an order  against  acquittal.  In exceptional cases where there are compelling  circumstances  and  the  judgment  under  appeal  is  found  to  be perverse, the appellate court can interfere with the order of acquittal.  The  appellate  court  should  bear  in  mind  the  presumption  of  innocence of the accused and further that the trial Court’s acquittal

bolsters the presumption of his innocence. Interference in a routine  manner where the other view is possible should be avoided, unless there are good reasons for interference.

25.  If we examine the judgment of the High Court in light of the  aforesaid legal  proposition,  we  do not  find it  to be a  fit  case  to  interfere with the order of acquittal.  The appeal lacks merit and, is accordingly, dismissed."

The lacunae in the judgement

No two views are alike and the law presumes innocence unless convicted. However in the instant case my considered view is that the Hon'ble Bench could have also done justice then showing just ways on following three counts:

(a) The Bench presumed that the Deaf Witness Geeta was able to write the telephone number so she was educated enough and could give her evidence in writing. Merely being able to write a phone number doesn't mean the witness could answer in writing and could read and write. The bench may not have been exposed to the kind of education the deaf children get in the country. While they may be able to write or remember telephone number, only a small fragment can write coherent sentences .. such is the state of affairs of the deaf education in Delhi- the capital of the Nation.

(b) If the Judges felt that the evidence wasn't foolproof and was unreliable due to the chances of father acting as an interpreter and also claimed to be an interested party and if there were procedural errors in collecting the evidence by the prosecution, in my considered view,  this was the fit case to be remanded back to the trial court to recollect the evidence keeping the legal formalities of an independent interpreter or re-appreciating the signs recorded at the time of evidence and through in camera recording of the evidence. The sole witness is alive and the Hon'ble court has already declared that she is the star witness and should not be discredited only due to her disability. Today there are enough sign language interpreters who could have assisted the trial court. On the contrary, the Hon'ble court chose to give the benefit of the doubt to the convict who had himself accepted that he killed the victim and it stood corroborated with the entire evidence on record and recovery of the murder weapon at his instance.

(c) The language in the entire judgement refers to the witness as "deaf and dumb" which is not an acceptable noun to refer to a person with Hearing and Speech impairment. The apex court should atleast set precedent in the use of proper language in light of the The Persons with Disabilities (equal opportunities, protection of rights and full participation)  Act 1995 as well as The UN Convention on the Rights of Persons with Disabilities 2006 that Indian is a proud signatory to.

Read the Entire Judgement in PDF here.

Read the coverage by the Indian Express  today here.

Read the Coverage by The Times of India here.

Regards,

Subhash Chandra Vashishth

Advocate- Disability Rights

subhashcvashishth@gmail.com

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost

(b) Age limit of 45 reduced to 18 years to avail pension.

(c) Free vocational training in all 32 districts benefiting 2400 disabled

(d) Cash awad to pursue high education to Hearing impaired students

(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:

Court takes on the role of messiah

MOHAMED IMRANULLAH S

Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Karnataka HC orders 3 pc quota in PG for disabled doctors in pre-clinical, para-clinical and clinical courses

HC orders 3 pc quota in PG for disabled docs

Bangalore, May 2 2012, DHNS:

The High Court of Karnataka on Wednesday directed the State government to complete the formalities regarding the seat matrix for the Postgraduate Common Entrance Test within three days.

Justice Bhaktavatsala told the government to announce the seat matrix within three days and asked it to provide three per cent reservation to physically challenged doctors during counselling for allotment of seats to eligible candidates in various disciplines of the postgraduate medical courses of the Rajiv Gandhi University of Health Sciences, as per the guidelines issued by the Medical Council of India.

The court was hearing a petition by physically challenged doctors - Veeresh Hallur and Mahajid Pasha - demanding three per cent reservation in the allotment of seats.

The petitioners said that the government had come up with a separate seat matrix, reserving postgraduate medical seats for doctors with locomotor disability in the range of 50 per cent to 70 per cent. They said such a reservation in seat matrix was only to offer seats in least preferred courses. The petitioners sought directions from the court to the government to provide three per cent horizontal reservation to physically challenged doctors in the pre-clinical, para-clinical and clinical courses.

Source: Deccan Herald