Delhi High Court directs the private schools to make their schools barrier free & inclusive

Dear Colleagues,

After its earlier order directing all private and government schools in Delhi to appoint Special educators for children with disabilities and provide necessary teaching and learning material, the Delhi High Court, on a petition by Social Jurist has now ordered to make all private schools barrier free for the disabled. 

It was brought to the notice of the court that private schools do not have adequate physical and academic infrastructure for children with disabilities and thus children forced in to these institution continued to face discrimination.

It was pointed out in the petition that there are 2039 unaided recognized private schools (1260 recognized by Directorate of Education (DoE), GNCTD and 779 recognized by MCD) and 258 aided recognized private schools (214 aided by DoE, GNCTD and 44 aided by MCD) in Delhi and most of them do not have the provisions of basic physical as well as academic infrastructure, including Special Educators as required for the education of the children with disabilities; These schools also did not provide barrier free infrastructure to the children with disabilities. This violated Right of Children to Free and Compulsory Education (RTE) Act, 2009 of such children as guaranteed under Articles 14,15,21, 21-A & 38 of the Constitution of India as well as contrary to the provisions of Delhi School Education Act, 1973, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, U.N. Convention on Rights of Child (1989) and U.N. Convention on Rights of Persons with Disabilities (2006).

The bench of Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw while hearing the petition W.P.(C) No.4618/2011 titled  Social Jurist, A civil rights group versus Govt. of NCT of Delhi directed all recognised, aided and unaided private schools in Delhi to appoint special educators and to make their buildings/school premises barrier-free for children with disabilities. The Director of Education has been directed to ensure that the Court Orders were followed and to de-recognise any school that has not made its premises disabled-friendly.

The court has now granted time up until March 31, 2013, to the schools to make their premises barrier-free and to appoint special educators with the next two years.

“Schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for special educators...no school shall refuse admission to children with disability for the reason of not employing special educators or not providing barrier-free access on the school premises,” the court order says.

The court has also clarified that the capital expenditure on making the school building and premises barrier free so as to allow free movement to children with disability has to be incurred by the schools from their own coffers and is not reimbursable by the Government as Section 19 of the RTE Act requires all schools, as a condition for their recognition, to provide a barrier free access in their buildings.

The Court ordered that the schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises. 

It may be pertinent to mention here that earlier a Division Bench of the Delhi High Court in matter Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489 had directed the GNCTD as well schools run by local bodies namely NDMC, MCD and Cantonment Board to ensure that each school shall have at least two special educators and that necessary teaching aids and reading materials are provided to children with disability. However, this did not cover the Private schools.

Those who want to go through the detailed order, Click here. W.P.(C) No.4618/2011

Media Coverage

Indian Express-  Make pvt schools barrier free for disabled: HC 

regards

Adv Subhash Vashishth

Railways submits Scheme for Online Concessional Rail Ticket booking for persons with Disabilities to Delhi HC [Judgement Included]

Dear Readers,

The present case challenged the discriminatory policy of Indian Railways that denied the persons with disabilities right to book railway tickets online while the same service is readily provided to other persons. Case was successfully fought by Mr. Pankaj Sinha, an advocate with visual impairment with Human Rights Law Network.

The petition pointed out that whereas senior citizens could book their railway tickets at concessional rate on the internet as mentioned in the policy, persons with disabilities could not avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centers.

Petition challenged the existing rules of Indian Railways and sought parity in extension of benefits that are currently available to senior citizens. The lawyer for the petitioner argued that denying such benefits violates Article 14 of the Constitution of India and also contravenes the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as well as the decision in Satyawati Sharma v. Union of India, AIR 2008 SC 3148.

Respondents argued that if such a service were offered, it would be abused.  It is pertinent to mention that the Railway Administration has already issued a warning  that if a concession certificate is obtained without meeting the required parameters, an enquiry can be launched as to how the person obtained that ticket. Additionally, the original documents that substantiate the plea of disability are required to be produced upon examination.

The policy for online ticket booking of senior citizens said- "In case of tickets booked through internet no concession is permitted except senior citizen."

Thus, as per this impugned policy, a person with disability was not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

In response to the petition, the Railway Board, Ministry of Railways, Government of India were forced to prepare broad outline as under :-

• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility. • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities. • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms. • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification. • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

Subsequently, the Govt. of India has earmarked suitable budget for implementing the above scheme. 

Judgement dated 12 Sep 2012 in W.P.(C) 2145 OF 2011 titled Praveen Kumar G vs Union Of India and Ors. 

Text of the Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 2145 OF 2011

 Judgments Reserved on:22.8.2012

 Judgment Delivered on:12.09.2012

PRAVEEN KUMAR G                                    . . . PETITIONER

Through : Mr. Pankaj Sinha, Advocate.

                                 VERSUS

UNION OF INDIA and ORS.                               ... RESPONDENTS

Through: Mr. Rajeeve Mehra, ASG with Mr. R.V. Sinha, Mr. R.N. Sinha, Mr. Ashish Virmani, Advocates for UOI.

CORAM :-

HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE:

1. This petition filed in public interest by a blind person alleges, in this petition the discrimination between disabled persons and senior citizens in the Policy of IRCTC which provides facilities and services for issuing the railway ticket on internet, or at the reservation counters. It is pointed out that whereas senior citizens can book their railway tickets at concessional rate on the internet as mentioned in the policy, disabled persons cannot avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centres.

2. The policy of senior citizens is as under:-

"In case of tickets booked through internet no concession is permitted except senior citizen." Thus, a person with disability is not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

3. The petitioner filed an application under Right to Information Act, 2005 to the Public Information Officer of the Indian Catering and Tourism Corporation limited on 18.9.2009 seeking information for travel concessions for completely blind persons on the website of IRCTC. The said application was replied by the IRCTC on 12.10.2009 stating that the travel concessions for blind persons for online ticket booking is a policy matter and needs to taken up by the Ministry. Hence, IRCTC shirked off its responsibility from this vital issue and no initiative was taken by the same regarding introducing the system of online ticket booking at concessional rate. The petitioner filed a representation to the Railway Board dated 3.6.2010 requesting the facility of concessional booking of tickets on IRCTC to be extended to the handicaps as is already done for the senior citizens. The said representation was replied by the Railway Board on 13.9.2010 stating that the concessional booking of ticket on IRCTC website has been extended where the physical document is not required to be submitted in advance as it might lead to misuse of the electronic reservation slip and hence, handicaps are not allowed to do the same. It is submitted that no effort has been made by the Ministry of railway to make the policy disabled friendly and have arbitrarily denied the facility to them. The Policy of IRCTC was formulated to provide as a feature to the public at large. Later, the internet ticket booking facility was introduced at concessional rates for the senior citizens. The said policy is formulated and issued by the Railway Board, which is under the Ministry of Railway. Thus, the said policy is exclusively for the public at large and the same is highlighted as the sole Eligibility Criteria on the website of the said department except the senior citizens, who are entitled for ticket booking through internet at concessional rate.

4. The submission of the petitioner is that the persons with disability cannot access this concession facility though provided to senior citizen and, therefore, it amounts to discrimination qua the disabled persons. With this, though the concessional facility is required, it cannot be effectively availed. It is submitted that the system of online ticket booking helps to save time and resources and also help the public at large to avoid long queue at the reservation counter. The said system has also helped the system of ticket booking more accessible and easy to handle. In this context it would be pertinent to mention that such a system for ticket booking would be magnanimously useful and beneficial for the persons with disability for whom the reservation counter in most of the occasions is inaccessible. The petitioner therefore calls for amendment to the Policy.

5. Notice in this petition was issued. Initially, the respondent filed the counter affidavit contesting the petition, pointing out the difficulties which may face by introducing this facility for disabled persons as well. The main apprehension of the Railways is that it may lead to misuse. Since it is a matter in public interest and not adversarial in nature and the intention was to find a solution, when it came up for argument on 21.12.2012, Mr. Chandhiok, learned ASG took time to enable the respondent to have a re-look in the matter and to find a solution as to who the facility of online ticketing with concession could be available, at the same time, scheme be devised that it prevents any misuse. Thereafter, the Railway Board, Ministry of Railway, Government of India prepared broad outline and placed before us. These are as under:-

• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility.
• The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities.
• This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms.
• The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification.
• A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

6. The petitioner has filed response to the aforesaid Draft Scheme dated 3.8.2012. Attempt is made to show that there can be a better system, as suggested by the petitioner, without any misuse. Since it is for the Government to devise the procedure and system and it is making endeavour in this behalf, we direct the respondents to take into consideration the suggestions given by the petitioner in its response dated 30.8.2012 and on that basis, further amendments in this scheme that may be feasible can be carried out. Mr. Rajeeve Mehra, learned ASG appearing for the Government submitted that there is always scope for improvement and these suggestions will be taken into consideration. The Railway Board can deliberate on these suggestions and come out with further recommendations if so required in the Draft Scheme suggested by it. If the petitioner still feels aggrieved, he is given liberty to approach again.

7. Writ petition stands disposed with these directions.

ACTING CHIEF JUSTICE                                                     (RAJIV SAHAI ENDLAW)
                                                                                                  JUDGE
SEPTEMBER 12, 2012 

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