Mechanical and Rigid implementation of Disabilities Act is against the legislative intent

Dear Colleagues,

The cases as below wherein the courts as well as lawyers fail to appreciate the basic intention of the legislature behind the benevolent Persons with Disabilities Act 1995 are indicative of the ignorance in the legal fraternity on the rights of the persons with disabilities.

The DoPT memorandum dated 29 Dec 2005 categorically states in para 22 as under:

22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for

them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question. 

However, rigid cut off marks as 90% would defeat the very purpose of the Disabilities Act and the courts must look at the legislative intent before dismissing such petitions mechanically. An appeal against this order must be preferred in the next superior court to set the things right.

Here is the news coverage from Indian Express 16 Jul 2013

No quota job if cut-off isn't met

The Madras High Court on Monday rejected a plea from K Kumaravelu of Marudhur South village in Nagapattinam district, praying for a direction to Teacher Recruitment Board (TRB) to appoint him as a secondary grade teacher under the priority quota for physically-disabled persons.

After passing the higher secondary examination, Kumaravelu, belonging to a backward class community, completed diploma in teacher education, in 2009. During his school days, he met with an accident and his right leg below the knee had been amputated.

He was issued a certificate by the Joint Director, Medical and Rural Health and Family Welfare in Nagai, fixing his disability at 60 per cent. He also appeared for the TET and obtained 83 per cent marks.

The petitioner contended that against the total vacancy of 12,000 posts, 3 per cent of 360 posts had to be earmarked for the disabled under Sec 33 of the Person with Disability Act, 1995.

Very few candidates were selected under this section. Hence, he must be given accommodation, after giving relaxation in the requirement of 90 per cent marks, he pleaded.

Additional Government Pleader P Sanjay Gandhi submitted that the minimum eligibility marks under the Act was 90 per cent.

No person could claim any relaxation in the matter, he added.

Indian Express 16 July 2013

Disabilities can't be restricted to those in the PwD Act 1995

Dear Colleages,

The present medical model of disability in the Disability Act and as understood by the Courts has some serious shortcomings. The etiology based labels or medical condition based labels are counterproductive so far as the constitutional mandate of ensuring equality and non-discrimination is concerned. The benefits of schemes meant for social justice can not be just restricted to persons whose condition or type of disability reflects in the law.

What is needed is to look at the restrictions that the person faces in the community due to the particular condition. The forumula that Amended Americans with Disabilities Act (came in to force on Jan 01, 2009) adopts is quite reasonable. It accepts you for the disability benefits if :

(a) If you have a physical or mental problem that substantially limits one or more of your “major life activities”.

(b) You have a record of having had such a problem in the past.

(c) Other people think you have such a problem, even if you do not actually have it.

What are major life activities

Some of the “major life activities” covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The amended ADA has made some major changes to the way the definition of disability had been interpreted under ADA in the past. The 2008 Amendments Act includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help people with cancer, because in the past they often had a hard time meeting the definition of disability.

Bombay High Court sets a precedent

The Bombay HC has in the below case issued notices to the Coordination Committees  - both Centre and State - established under the Persons with Disabilities (Equal opportunities, proteciton of Rights and full participation) Act 1995 Central Govt.to respond to a similar case wherein the petitioner Vinod Tambe - a personal rehabilitated after cancer  -   has sought benefits available to persons with disabities under the Act.

Hon'ble Chief Justice Mohit Shah has been known to be a very sensitive judge so far as  matter related to those with disabilities and marginalised segments are concerned. He has been known to take suo moto notice of matters affecting the rights of disabled while he was with Gujarat High Court and championed the cause of persons with disabilities.

Disabilities Act not superseding but supplementing

The Maharasthra Government had through a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. And the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being a beneficial legislation only supplemented what existed before and by its enactment, no pre-existing right  could be taken away by the state in such a blatant manner. Therefore, even if if caner-cured is not included in the medical definitions of the Disabilities Act, the said category continues to get the benefits, technically.

Other unreported cases

I personally know of a case in Valsad, Gujarat where a gentleman met with a serious car accident during which a metal rod of the car entered his body from a little lower than the urinal part on the front side of the body and came out from the spinal cord i.e. back side of his body thereby tearing his body and damaging the sphincter, anus, rectum and the spinal cord. He was somehow saved but with a colostomy. 

The Disability Certificate granted by Civil Hospital Valsad says he is a case of "Permanent Colostomy  + L1 Vertebra Fracture (Old)" and degree of disability is quanitified as "66%" .  

He sought benefits of Tax Concession to buy an adapted car available to persons with Disabiliites. However, the Government authorities refused him the benefit saying that he is not a person with disability according to the Persons with Disabilities Act 1995 since he is not suffering from blindness, low vision, mental illness, mental retardation, hearing impairment or locomotor impairment! This is despite that fact that the gentleman has no voluntary control over his stools and has problems in independent mobility.

Lessons

Even the draft of the new Rights of Persons with Disabilities Bill 2012 which is to replace the existing Disabilities Act 1995 doesn't address this issue and still revolves around the etiology and types of disabilities without looking at the effect of the disability on the normal living of the person affected and the accommodations required by the person to be able to functional on an equal basis with others to ensure his fundamental right of equality to him. We need to move beyond types of impairment to the effects of the impairment the person faces in terms of disabilities while interacting with the social and environmental barriers and derive the accommodations that the person may require. 

The amended Americans with Disabilities Act (ADA) even recognises a disability which may not be actually there but may be perceived by others in addition to the major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. 

We seriously need to consider this before the present bill gets passed in the present form. Below is the news coverage on Bombay High Court admitting a case of  person recovered from Cancer with residual impairments/ disabilities.

TREAT CANCER - CURED AS DISABLED: PLEA IN COURT

Rosy Sequeira, TNN | Aug 5, 2013, 01.40 AM IST

MUMBAI: The Bombay high court has sought responses from the central and state coordination committees for persons with disabilities after a teacher cured of cancer approached it, demanding the same rights granted to disabled people. 

Solapur resident Vinod Tambe was diagnosed with blood cancer in 1977 at the age of seven. He was treated at Tata Memorial Hospital, and on March 16, 2005, issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him "cancer-cured handicap". Still, in spite of this, Tambe found that he was not allowed to access facilities for handicapped people. The primary school teacher subsequently moved court. 

Tambe is seeking the benefits accorded to disabled persons in healthcare, public transportation, education and employment. "The government should be considerate towards someone who has gone to the doorsteps of death and returned. Even though I am cured I still go through body pain. I am not like a normal person," he said. 

Tambe's advocate M S Karnik, during a hearing on July 12, pointed out that a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. 

But the Maharashtra government maintains that the circular was superseded by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The definitions of disabilities listed in the act do not cover Tambe's case, it says. 

Karnik argued that the authorities erred in applying a narrow definition of the term "disability": "A person who has suffered from blood cancer even after getting cured does suffer from disabilities arising from weakness of the bones, joints or muscles, leading to substantial restriction of the movement of limbs." Karnik added that Tambe's case can be classified under locomotor disability, which is recognised under the 1995 act. 

The advocate contended that various additional forms of disabilities should be covered under the act and the Right of Persons with Disabilities Bill, 2012. Because of the current narrow definitions, he said, many people are getting deprived of disability benefits. 

Agreeing with him, a division bench of Chief Justice Mohit Shah and Justice M S Sanklecha gave the instance of the rare genetic disorder Hunter's syndrome. In this, an enzyme the body needs is missing or insufficiently generated, the judges said, leading to progressive damage, affecting development and organ function. 

Karnik said among the responsibilities of the central and state coordination committees is to continuously evolve policies to solve the problems faced by disabled people and to advise Central and state governments. The judges issued notices to the committees and posted the next hearing on August 7.

MAKING A CASE

THE PETITIONER

Vinod Tambe was diagnosed with blood cancer in 1977 and treated at Tata Memorial Hospital. In 2005, he was issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him 'cancer-cured handicap'

THE PLEA

Cancer survivors should be granted the rights given to disabled people

Disabilities Under Right of Persons with Disabilities Bill, 2012

1) Autism spectrum disorder 2) Blindness 3) Cerebral palsy 4) Chronic neurological conditions 5) Deafblindness 6) Haemophilia 7) Hearing impairment 8) Intellectual disability 9) Leprosy cured 10) Locomotor disability 11) Low vision 12) Mental illness 13) Muscular dystrophy 14) Multiple sclerosis 15) Specific learning disability 16) Speech and language disability 17) Thalassaemia 18) Multiple disabilities (two or more disabilities listed as one to 17 occurring in a person at the same time)

Disabilities Defined Under Persons with Disabilities Act, 1995

1) Blindness 2) Low vision 3) Leprosy-cured 4) Hearing impairment 5) Locomotor disability 6) Mental retardation 7) Mental illness

Times View


The government should treat such cases with utmost sympathy instead of going purely by the rulebook. And, if need be, rules should change to provide relief to people in distress. The court has done the right thing by indicating there may be a need to take a fresh look at the law.

Source: Times of India

Colourblindness no ground for denying promotion - Delhi High Court

Expressing displeasure over the central government's inaction, the Delhi High Court has directed the authorities to treat CRPF personnel with colour blindness on par with others for promotion.

A bench of Justice Gita Mittal and Justice Deepa Sharma said in a recent order that the authorities "have proceeded arbitrarily" in the cases of the colour blind personnel compelling them to repeatedly approach the court.

Earlier, the court decided the issue relating to colour blindness in serving Central Reserve Police Force (CRPF) whose colour blindness was discovered at the time of medical examination for promotion.

The court said that such personnel "would be entitled to full benefits of promotions as is extended to those who do not suffer from colour blindness".

However, despite "clear directions of the court, the authorities were not only refusing promotion but were proceeding to board out such personnel who were discovered to be suffering from colour blindness".

The court said the authorities had "miserably" failed to abide by the specific directives of the court.

The observations of the court came on the petition of Suresh Ram, a trooper whose promotion was stalled following the discovery that he was colour blind.

The court directed the authorities to promoted Ram from the rank of constable to head constable with all benefits, including seniority.

Sources: Business Standard

British Appeals Court rejects Euthanasia sought by two severely disabled men

Dear Friends,

A UK Court of Appeal ruled unanimously against two severely disabled men who argued that they had the right to die. One of them, Paul Lamb, said he was “hoping for a humane and dignified end” after he was severely paralyzed in a car accident.  The other pettioner died during the course of hearinng. Now Paul  along wih the widow of the other petitioner are planning to approach the Supreme Court.

In Europe, euthanasia is allowed in Belgium, the Netherlands, and Luxembourg. Assisted suicide is usually for people who have at least some capacity to kill themselves, perhaps by drinking a lethal beverage or taking a fatal dose of drugs. It is legal in Switzerland, the only European country that allows foreigners to travel there to die.

Paul Lamb, who was paralyzed in a car accident, lies in a bed at
his home in Leeds, northern England (courtesy. nydailynews.com)

The British appeals court upheld a law against euthanasia in rejecting appeals from two severely disabled men who argued that doctors should be allowed to legally kill them. 

The two men - one of whom died of pneumonia last year - claimed their right to "private and family life" as guaranteed by the European Convention on Human Rights was being violated since they were not allowed to choose how and when they wanted to die. 

In a judgment issued on Wednesday, the Court of Appeal acknowledged the current law interferes with that right but ruled the ban on euthanasia is justified. It upheld a decision by the High Court last year that any changes to the euthanasia law must be made by politicians, not judges. 

In a unanimous ruling, the judges said the two men had "permanent and catastrophic physical disabilities" but said the issue of euthanasia "raises profoundly sensitive questions about the nature of our society." The judges wrote that "Parliament represents the conscience of the nation" and said the court had no jurisdiction to challenge the legal ban on euthanasia. 

"I am absolutely gutted," said Paul Lamb, one of the men involved, who was severely paralyzed after a car accident. 

"I was hoping for a humane and dignified end," Lamb said in a statement. "This judgment does not give me that." 

Lamb said he would carry on with the legal fight for euthanasia. His lawyer said they were considering options for appealing the case to the Supreme Court, together with the widow of the other man in the case, Tony Nicklinson. 

In a related case, the court ruled that an appeal by another disabled man to clarify who will be allowed to help people commit suicide, should be allowed. At the moment, the Crown Prosecution Service does not prosecute close family and friends if they help loved ones travel abroad to commit suicide as long as they act in good faith. 

There is no such provision for doctors or nurses, for whom it is illegal to help or even provide medical records for patients if they suspect they may want to go abroad for assisted dying. Lawyers for a man known only as Martin argued the policy was "defective" in failing to outline cases where health care professionals might be allowed to help their patients die. Martin's family wants no involvement in his suicide. 

In its ruling, the court said that while it was impossible to guarantee immunity for a health care professional who helps someone commit suicide, the current policy should be amended to be more precise. 

Keir Starmer, director of public prosecutions, said it would be sensible to have the advice of the Supreme Court before any amendments are made to the guidelines. His office is appealing the decision to the Supreme Court. 

Sources:  NYDailyNews, 31 Jul 2013;     Times of India, 31 Jul 2013

Lawsuit against State of Florida for unnecessary segretation of disabled in institutions

Dear Colleagues,

Children have a right to grow up with their families, among their friends and in their own ‎communities‬ as per US Supreme Court’s decision in ‪‎Olmstead‬ v. L.C. The judgement requires states to eliminate unnecessary ‪‎segregation‬ or ‪‎institutionalisation‬ of persons with ‪‎disabilities‬. 

On finding ‎violations‬ that are serious, systemic and ongoing and which require comprehensive relief for children and their families, US Justice Department has filed a lawsuit against the State of Florida alleging that the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other ‎communitybased‬ settings! 

Here is detailed press release:

Justice Department Files Lawsuit Against the State of Florida for Unnecessarily Segregating Children with Disabilities

The Justice Department announced today that it has filed a lawsuit against the state of Florida alleging the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other community-based settings.  The lawsuit, filed in federal district court in Fort Lauderdale, Fla., further alleges that the state’s policies and practices place other children with significant medical needs in the community at serious risk of institutionalization in nursing facilities.  The ADA and the Supreme Court’s decision in Olmstead v. L.C. require states to eliminate unnecessary segregation of persons with disabilities.  The department’s complaint seeks declaratory and injunctive relief, as well as compensatory damages for affected children.

In September of last year, the department issued an extensive findings letter, notifying the state that it is in violation of the ADA.  The letter found that the state’s failure to provide access to necessary community services and supports was leading to children with significant medical needs being unnecessarily institutionalized in, or being placed at serious risk of entering nursing facilities.  The letter identified the numerous ways in which state policies and practices have limited the availability of access to medically necessary in-home services for children with significant medical needs.  Additionally, the state’s screening and transition planning processes have been plagued with deficiencies.  Some children have spent years in a nursing facility before receiving screening required under federal law to determine whether they actually need to be in a nursing facility.

As a result of the state’s actions and inaction, the state has forced some families to face the cruel choice of fearing for their child’s life at home or placing their child in a nursing facility.  In one instance, the state cut one child’s in-home health care in half.  Her family could not safely provide care themselves to make up for this reduction in services, and they felt they had no choice but to place her in a nursing home.  Another child who entered a nursing facility as a young child spent almost six years in a facility before the state completed her federally mandated screening.

“Florida must ensure that children with significant medical needs are not isolated in nursing facilities, away from their families and communities,” said Eve Hill, Deputy Assistant Attorney General for the Civil Rights Division.  “Children have a right to grow up with their families, among their friends and in their own communities.  This is the promise of the ADA’s integration mandate as articulated by the Supreme Court in Olmstead.  The violations the department has identified are serious, systemic and ongoing and require comprehensive relief for these children and their families.” 

Since late 2012, the department has met with Florida officials on numerous occasions in an attempt to resolve the violations identified in the findings letter cooperatively.  While the state has altered some policies that have contributed to the unnecessary institutionalization of children, ongoing violations remain.  Nearly two hundred children remain in nursing facilities.  Deficient transition planning processes, lengthy waiting lists for community-based services and a lack of sufficient community-based alternatives persist.  The department has therefore determined that judicial action is necessary to ensure that the civil rights of Florida’s children are protected.

The ADA prohibits discrimination on the basis of disability by public entities, including state and local governments.    The ADA requires public entities to ensure that individuals with disabilities are provided services in the most integrated setting appropriate to their needs. The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability and to conduct compliance reviews regarding the programs and services offered by public entities. 

Source: Press Release 22 Jul 1013

HC orders exemplery damages to child acquiring disability due to electrocution

Dear Colleagues,

In this unique case wherein a toddler was electrocuted due to negligence of Uttar Haryana Bijli Vitran Nigam (UHBVN) and lost his both arms and one leg with severe burn injuries, the Punjab and Haryana High Court took an unprecedented step of exercising its extraordinary jurisdiction under Article 226 of the Constitution and awarded the child 'exemplary damages' -Rs 62 lakh and litigation costs in addition to all medical costs, including those on prosthetics and future medicinal advances like stem cell therapy, until he is 21.

Breaking from the confines of the Victims Compensation Scheme brought about through an amendment to the Criminal Procedure Code (CrPC 357A) in 2008, the Hon'ble Judge not only saved the toddler Raman and his father the vagaries of prolonged civil litigation but may have also opened doors for other similarly placed victims for whom such remedial compensation could ensure survival. This precedent may greatly help victims of rape, human traffickking, kidnapping, child abuse and acid attacks, where protracted trials are often tedious and cumbersome. The heart touching coverage by India Today below:

Amputation couldn't rob little Raman Swami's zeal for life

Asit Jolly, Friday, July 19, 2013 | 17:21 IST

The animated antics of Chhota Bheem and Doraemon never fail to delight him. And he almost stops breathing in bated anticipation every time Mahendra Singh Dhoni lunges to stump a batsman. Potato wafers, Pepsi and Maggi noodles make for his dream meal. In fact the last thing on five-and-a-half-year-old Raman Swami's mind is the fact that he is missing both arms and his left leg.

November 3, 2011, was the last time Raman used his limbs, running and tripping all the way back from nursery school to his home in Haryana's Sanauli Khurd village. Like other afternoons, he quickly ate lunch before bounding up the narrow stairwell to the roof, his favourite spot in the house. Minutes later, a neighbour rushed in screaming: "Raman ko bijli ne pakkad liya (Raman has been electrocuted)! The forever-curious toddler lay burnt, bleeding and unconscious in the neighbour's house, 15 feet from the spot he last stood-thrown by an 11,000 volt power line, installed by state-owned power utility Uttar Haryana Bijli Vitran Nigam (UHBVN), just two feet above the roof.

On June 27, 2013, twenty months after his life-changing encounter, the Punjab & Haryana High Court stepped in as Raman's saviour. Justice Rajiv Narain Raina took the unprecedented step of exercising his extraordinary jurisdiction under Article 226 of the Constitution in awarding the child 'exemplary damages'-Rs 62 lakh and litigation costs in addition to all medical costs, including those on prosthetics and future medicinal advances like stem cell therapy, until Raman is 21.

Breaking from the confines of the Victims Compensation Scheme brought about through an amendment to the Criminal Procedure Code (CRPC357A) in 2008, Justice Raina not only saved Raman and his father the vagaries of prolonged civil litigation but may have also opened doors for other similarly placed victims for whom such remedial compensation could ensure survival. "The judge has created a precedent for rape victims, sufferers of acid attacks, victims of human trafficking, child abuse and kidnapping where protracted trials can be tedious and cumbersome, says Chandigarh lawyer Anil Malhotra, who advised the court as amicus curiae in the case.

After more than a month at the Burn Injuries Unit of Delhi's Safdarjung Hospital, Raman came home, definitely tired and wondering why he could not bring himself to scratch at the infernal itch on his ear lobe. "They saved his life and I cannot stop thanking them for that, but I got only half my son back, says Manoj Sharma, 42, Raman's inconsolable father who runs an autorickshaw and tractor spares shop on the Panipat Road heading out of Sanauli Khurd. "My boy wanted wings to fly, instead they took away his limbs, he says with eyes brimming over at the horrifying memory of seeing portions of his son's charred fists still smoking on the 'killer cable'.

The promise of money, which will be held in two bank accounts until Raman turns 21, has changed little in Sharma's bleak existence. The poor shopkeeper must contend with the unsettling prospect of paying back nearly Rs 15 lakh he borrowed for his son's treatment over the past 20 months. But more than the money, it bothers him that the court "failed to punish even one of those responsible for Raman's condition.

Sharma told the court that after objecting to the proximity of the 11,000 volt power line when it was first installed almost touching his roof in 2006, he made several verbal and at least one written complaint to uhbvn officials over the years. "I had a foreboding that something terrible would happen. They did nothing. And our whole world fell apart, he says.

Up in the two-room house above his father's ramshackle auto parts shop, little Raman is quite oblivious to the commotion over the high court's verdict and compensation package. A trifle shy at first, he quickly warms up to the presence of new visitors. Ten short minutes later you forget the boy has just one 'good' limb.

"He has become surprisingly self-sufficient, his mother Beena, 38, says with a conflicting mix of doting pride and apprehension about her only son's future. Raman incredulously employs his five remaining toes and a combination of muscles from his jaws, chin, torso and lower back to write, give himself a bath, switch to Doraemon on tv and even use the video app on his father's Nokia touchscreen phone to shoot movies with a steadier 'right foot' than most veteran cameramen.

"Itches are my biggest problem, he says with a sheepish smile. "But didi (sister) is always by my side. Raman uses a pen held between his toes to indicate the precise spot on his back to older sister Khushi, 9.

Can he use his foot to draw? "Sure I can, he unhesitatingly replies, proceeding immediately to sketch a face using chalk on a slate. The picture is done but Raman isn't happy: "That does not look like you, he says. "I will practise and the next time you come I shall draw you better", he smiles.

A year before he touched the wire on the roof, he broke his right arm in a fall. "When he asks, I tell him his leg and arms will grow back just like his arm healed after the fracture, says Beena. "He is already suffering and I cannot bear to tell him the truth, she says.

"Don't go close to the wire... it will hurt you, the boy cautions anyone going up to the roof. And yes, a fortnight after the path-breaking high court verdict, uhbvn's offending power line still looms over the Sharma home.

Raman says he wants to grow up to be a Dhoni or a Sehwag. Looking down at his absent limbs he quickly assures you: "Don't you worry, they will grow back. My mother said so. And my mother never lies.

And so what if his arms haven't 'grown back', the little fellow can give you a farewell jhappi (hug) like none other: Simply putting his beautiful head over your shoulder and sighing. You come away with the feeling of being held tightly in his 'arms'.

Source: India Today

Judges turn the tables on Husband seeking divorce on grounds of Mental illness of wife

Dear Colleagues,

Striking a gender equality note, the Supreme Court turned the tables and asked the husband whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony! Quite an interesting read and also indicates the increasing trend of more matrimonial cases reaching courts seeking divorce in name of mental ilnesses of the spouse... (read wives with unsound mind) ! 

SC strikes gender equality note in grant of divorce

Dhananjay Mahapatra, TNN | Jul 2, 2013, 04.28 AM IST

NEW DELHI: Irretrievable breakdown of marriage, coupled with promise of large amount of money as permanent alimony, has been cited by rich and powerful men to seek divorce from their wives when all was not well in the marital relationship. 

Striking a gender equality note, the Supreme Court on Monday turned the tables and asked whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony. 

The case related to Darshan Gupta and Radhika Gupta, who married when they were barely out of their teens in 1997. Radhika's first pregnancy was terminated due to medical reasons. The second pregnancy was again a very complicated one and the child had to be delivered through Caesarian section. She remained unconscious for a long time and developed serious mental disorder. The child died eight days after birth. 

Though she was treated in reputed hospitals, she allegedly remained mentally ill. The husband claimed separation from her since 2002, breakdown of marriage and offered a large sum of money as permanent alimony to seek termination of marriage. 

A bench of Justices P Sathasivam and J S Khehar rejected the husband's plea and wondered whether a similar request by a woman would have been entertained by the apex court for grant of divorce from a husband who developed some mental disorder. 

"In the context of doing justice, it was suggested that the appellant (husband) would be ready and willing to pay the respondent (wife) whatever was considered appropriate by the Supreme Court. We are informed that the appellant is financially well to do," the bench said. 

"We would, in our endeavour to determine the issue in hand, examine the matter by reversing the roles of the parties. We will examine the matter as if the wife had approached the family court seeking divorce, on the ground that her husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to 'near normal' after treatment. And his mental condition was such that it would not have any effect on his matrimonial obligations," the bench added. 

"And the wife's family is agreeable to pay an amount to be determined by this court (just as the husband Darshan Gupta has offered), so as to enable their daughter to break away and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves whether the husband would have accepted such a plea, in the facts denoted above," it further said. 

"In such a situation, if this court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand," Justice Khehar, while authoring the judgment for the bench, said.

Source: Times of India

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

Dear Colleagues,

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

Subhash Chandra Vashishth

Advocate

ICAI's writer guidelines still discriminatory against persons with disabilities

Dear Colleagues,

This post is to alert the students with disabilities appearing in the CA exams organised by ICAI that start tomorrow onwards i.e. 02 May 2013 onwards and are facing any problem with regard to scribe / writers etc. 

Background
The Department of Disability Affairs, Ministry of Social Justice & Empowerment, Govt. of India on the order of Chief Commissioner Disabilities, have issued "Uniform and Comprehensive Guidelines for conducting examinations for the persons with disabilities"  vide Memorandum No F.No. 16-110/2003-DD.III dated 26 Feb 2013. These guidelines are binding on all the recruitment agencies, academics/ examination bodies including ICAI.

However, the ICAI's has till date not taken any step to revise their writer guidelines. Many of you would recall that last year during the month of April, we had to challenge the arbitrary and unreasonable Writer's Guidelines that put draconian conditions for usage of writers/ scribe by the persons with disabiliteis.  This issue was covered in my earlier post dated 26 April 2012 titled "ICAI imposes arbitrary writers/ scribes conditions for students with disabilities". 

When the ICAI did not budge even after a clear cut order from the Court of Chief Commissioner Disabilities, we had to urgently move the Delhi High Court on 02 May 2012 who passed its Judgement in the matter titled "Subhash Chandra Vashishth Vs. Institute of Chartered Accountants of India" on the same day allowing the petition and striking down the arbitrary guidelines as detailed in my earlier post dated 02 May 2012 for the said exams.

Discrimination Continues

Though as directed by the Hon'ble High Court in the above order, in a subsequent meeting of the ICAI board, some conditions objected by us were removed and a new guideline was brought out. However, several restrictive conditions still remained which are now running contrary to the Uniform Guidelines of the MSJE dated 26 Feb 2013. 

One of them is "Writer should be the same person for all the papers of an examination and in case there is a need to change the writer for the reasons beyond the control of the concerned examinee or the writer and a request in this behalf is made, change may be allowed.  Such a change in writer will be permissible once during the course of an examination." 

This works against the interest of the persons with disabilities since it is difficult to find good writers in the exam season. And one person can have exigencies of life that may now allow him/her to attend all the examinations.  Only a person with disability knows how difficult it is to find a competent writer. 

The ICAI has further restricted the writers on the basis of qualifications. The chartered accountancy is a technical examination and any undergraduate can not reduced the dictation on the answer sheet with perfection. But the ICAI has put in the following qualifications for writers:

Examination	Qualification of writer as per ICAI's Guidelines	MSJE Guidelines
CPT	10th/ /Matriculation	No cap on qualification. Invigilation needs to be strengthened
Final/Intermediate [IPCE]	Under Graduate and neither registered students of CA/CWA/CS course nor passed Final examination and nor a member of the ICAI, ICWAI, and ICSI.	No cap of qualifications
Post qualification course (meant for members of  ICAI )	Graduate (other than in Commerce or Corporate Laws Stream )  and neither registered students of CA/CWA/CS course nor passed Final examination and nor a member of the ICAI, ICWAI, and ICSI.	No cap on qualifications

One of the candidate wrote to the ICAI officials in mid of March 2013 requesting ICAI to relax the conditions so that they could appear with multiple writers those who are at least commerce graduates. However, today i.e. one day before the examination, suddenly the candidate received the following response by email :

"Please refer to your mail dated 14th March, 2013, stating, inter alia, as under:-

(a)  I be permitted to get different scribes for the different days of examinations so that unavailability of good scribes does not cause an impediment to my succeeding at the examination and;

(b)  It is requested that the regulations with relation to scribes be revised to enable visually impaired persons to use scribes who are commerce graduates.

In connection in the above, following is stated as under:

a)   In terms of related guidelines in place, ‘writer should be the same person for all the papers of an examination and in case there is a need to change the writer for the reasons beyond the control of the concerned examinee or the writer and a request in this behalf is made, change may be allowed.  Such a change in writer will be permissible once during the course of an examination.’

Hence, we regret our inability to accede to your request for different writers. In case, however, change in writer is beyond your control, you may submit a  request at the appropriate for change in writer as stated above. Such a change would be permissible only once.  The related guidelines are hosted on website www.icai.org .  You may like to visit the same.

b) The guidelines are framed at appropriate level vis-à-vis considering all the relevant factors.  Please refer to point No.2 of the enclosed revised guidelines.

ICAI, Exams."

The candidate was shocked to receive the response just a day before the exam. It is ICAI's tactic to inform the candidates closer to the actual exam so that no candidate can approach for legal remedy and suffer in silence. They did this last year also. 

The so called revised guidelines hosted on the icai website  have been found to be arbitrary, unlawful and highly unfair for persons with disabilities. The Additional Secretary- Exams, ICAI has been alerted to resolve this on priority today through a detailed telephonic call and also a detailed email by the undersigned. However, the response did not confirm any immediate action but only a typical  assurance "we are seized of the matter and are looking at it. Lets see what we can do  and we will try to do something....."

The Chief Commissioner- Disabilities has also acted promptly with a letter asking the ICAI to not only allow the students with disabilities to avail multiple number of scribes/ writers to write their exams but also have writers with no cap on qualifications or age etc. It means a student with disability can also take along with him/her a junior student studying in the same college/institution or a family member.

All students with disabilities espcially those who are entitled for writers/ extra time and who are to appear in the ICAI examination that starts tommorrow should claim the benefits of the Scribe Guidelines of the Ministry of Social Justice referred above.If any of the students/ candidates with disabilities particularly those with vision impairment  face any problem while appearing for the ICAI exams that start tomorrow, please do let us know.

Mr. Pranay Gadodia & others at Eye-way Help Desk  deserve accolades for facilitating the candidates approach us in time. 

Madras High Court reinstates conductor citing section 47 of Disabilities Act

Dear Colleagues,

It is little surprising that the corporations, government departments continue to disregard Section 47 of Indian Persons with Disabilities Act  1995 that provides as under:


"47. (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service. 

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. 

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever 
is earlier. 
(2) No promotion shall be denied to a person merely on the ground of his disability: 
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. "

Despite the clear cut provisions in the Act, Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation was declared medically unfit to continue in service by a medical board in 2004 and removed from service, though with an assurance of an alternate employment which was refused later.

The Court reinstated the conductor with back wages from the date of his termination citing Section 47 ibid.

Here is the news coverage.



Conductor sacked over disability, gets back job
TNN | Jan 23, 2013, 06.24 AM IST

CHENNAI: About nine years after a government bus conductor was removed from service on the ground of an unidentified 'disability', the Madras HC has ordered his immediate reinstatement with all salary arrears and service seniority.

Justice D Hariparanthaman, ruling on a petition filed by T M Ravichandran, said: "Any employee who acquires disability during his service is given protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There is a mandate under the Act that no establishment shall dispense with a staff who acquires a disability during service."

Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation, was found 'medically unfit' to continue in service by a medical board of the Government General Hospital in Chennai on February 2, 2004. He was removed from service on August 16, 2004, with an assurance that he would be given an alternate employment based on the seniority list. On December 26, 2011, however, the corporation rejected his request for reinstatement, stating that no other suitable post was available.

Rejecting the transport authorities' stand, Justice Hariparanthaman said Section 47 contemplated that if there is no suitable post is available, the person should be kept on a supernumerary post till a vacancy arises or till his superannuation. "There cannot be any gap between the disqualification of an employee due to acquiring disability and adjustment in a suitable post," he said, setting aside the dismissal order. The judge then asked the authorities to reinstate Ravichandran in service within two weeks along with back wages from the date of his termination.