Schizophrenia - no ground for divorce: Supreme Court

Dear Colleagues,

The Hon'ble Supreme Court of India has confirmed that Schizophrenia can not be ground of divorce. The Court on the contrary said if the wife is still suffering from the condition, the husband must get her the right treatment by sticking to her treatment plan and make best attempts to get her better. The court clarified that grant of a decree or dissolution of marriage is not in the best interests of either the respondent or her adolescent daughter.

Here is the news from The Hindu

Man can’t dump wife on grounds of schizophrenia, rules Supreme Court

J. VENKATESAN,  September 19, 2013

“It is a treatable, manageable disease, on par with hypertension and diabetes”

Temporary ill-health including schizophrenia, a mental illness, which is curable, cannot be a ground for divorce under Section 13 (1) (iii) of the Hindu Marriage Act, the Supreme Court has held.

A Bench of Justices G.S. Singhvi and V. Gopala Gowda, quoting Vedic scriptures, said, “Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly.”

Writing the judgment, Justice Gowda: said “Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine…” The partners “must weather storms and embrace sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case [in which], the respondent [Kollam Padma Latha] was unwell and was taking treatment. The illness had its fair share of problems. [But] can this be a reason for the appellant [Kollam Chandra Sekhar] to abandon her and seek dissolution of marriage after a child is born out of their union?” Their marriage was solemnised on May 31, 1995 in Kakinada as per Hindu rites and customs.

Dr. Chandra Sekhar’s appeal is directed against the September 28, 2006 common judgment and order passed by the Andhra Pradesh High Court, setting aside the judgment and decree of divorce granted in his favour by the trial court. The High Court held that there was no positive evidence to show that the respondent had suffered from schizophrenia and even if she had suffered from some form of schizophrenia, it could not be said she was suffering from such a serious ailment. “Schizophrenia is a treatable, manageable disease, which can be put on a par with hypertension and diabetes,” it said after examining evidence.

Accepting this verdict, the Bench said: “The High Court has thus rightly set aside the decree of dissolution of marriage and granted a decree of restitution of conjugal rights in favour of the respondent by allowing her petition.”

Pointing out that the respondent had not only completed MBBS but also had done a postgraduate diploma in Medicine and that she was continuously working as a Government Medical Officer, the Bench said: “Had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness.” If he felt that she “is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better.” Grant of a decree or dissolution of marriage “is not in the best interests of either the respondent or her daughter, who is said to be of adolescent age.” 

....to read from source click here: The Hindu 


And here are comments appeared in Indian Express titled An Unsound Framework on the judgement from our colleague Amba Salelkar, an advocate and fellow at Inclusive Planet Centre for Disability Law and Policy, Chennai 

Matrimonial law is heavily stacked against persons with disabilities

Mental health activists were pleased with the Supreme Court's recent observation that the mere fact of a spouse having "schizophrenia" was not enough ground for divorce under section 13 of the Hindu Marriage Act. The act allows for divorce if a spouse "has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent". The provision itself is controversial, because it includes both diagnosed and un-diagnosed conditions, which effectively makes a judge the sole authority on whether a person is of "unsound mind" or not. Celebrations were more subdued after a closer examination of the judgment.

The judgment laid undue stress on patronizing the institution of marriage, although that is not the focus of this article. It also showed that the Supreme Court has done nothing but uphold an earlier position, laid down in 1988 in a remarkably well-thought-out ruling by Justice Venkatachaliah in Ram Narain Gupta vs Rameshwari Gupta. The ruling took into account literature on psychiatry and jurisprudence to reach its conclusions. One particular section stands out: "Undoubtedly, mental illness is so dis-valued because it strikes at the very roots of our personhood. This is captured in part by the language we use in describing the mentally ill. One is a hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox".

The grounds for divorce are heavily stacked against persons with disabilities. Besides "unsoundness of mind", leprosy, which results in disability, still remains a ground — despite being completely curable. Till 1976, epilepsy was also included in this list. The only other "health" concern that the law recognises is venereal disease, which strikes at the very heart of "conjugal bliss" and may accompany ground one: adultery.

The legislature, however, did not intend to make "unsoundness of mind" an easy escape route. As Venkatachaliah points out, "If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law". The qualification that the petitioner could not "reasonably be expected to live with the respondent" was in the statute books. Then why did the Supreme Court have to reiterate its own position, in a case with identical facts? It does seem to repeat itself quite often, of course, but this instance is significant. Just two years ago, the principal judge of the family court at Chennai stated that 40 per cent of divorce cases before the Chennai court involved allegations of unsoundness of mind.

The experiences of persons with disabilities show that labels, bad enough in themselves, come with a whole set of repercussions. For example, the Reserve Bank of India specifies that persons covered under the National Trust Act, that is, those with cerebral palsy, "mental retardation", autism or multiple disabilities, require a guardian, appointed under the act, to open a bank account. That they may be competent to exercise legal capacity is not even a remote possibility. Every single day, persons with psycho-social disabilities are held incapable of being a spouse, or a parent, by trial courts across the country. Few of them have the facility to move the high courts in appeal, fewer still can knock the on doors of the Supreme Court for justice.

No matter how well intentioned and well drafted the relevant legislation is, its poor and misguided implementation has resulted in discrimination. This should be a cause for concern and reconsideration among policymakers. As a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), India is obliged to implement Article 23 of the convention — the right to family of persons with disabilities, as well as Article 12 — recognition of legal capacity. In a UNCRPD-compliant framework, the ipso facto granting of divorce on grounds of "unsoundness of mind" would not even be possible. In fact, a person with a psycho-social disability should be allowed to file a petition for divorce on grounds of insufficient care by their spouse — this may come under the purview of the recognized "mental cruelty".

As long as there is a discriminatory provision against persons with psycho-social disabilities, there will be the possibility of misuse. This week's ruling, as well as contemporary records of the experiences of persons with disabilities, underline the fact that things have not changed in the decades between the two judgments. Matrimonial law in the context of persons with disabilities — whether it is the law itself, procedural aspects, the training and sensitivity of judges — needs to be scrutinised and reconsidered, but only after all preconceived notions are left at the door.


To read from source click here: Indian Express

Key Words: Right to Family of persons with disabilities, Legal Capacity of persons with disabilities, Section 13 of Hindu Marriage Act, psycho-social disabilities, UNCRPD, Mental Illness or unsoundness of mind as ground of divorce, 

Can blind carry guns in public under the ADA

Changes to USA's Americans with Disabilities Act (the state law) in 2011 allowed those with visual impairments to legally carry guns in public. However, there is a debate in Iowa State of USA between the disability advocates and law enforcement officials who are split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.
In other words can  blind can be discriminated from carrying guns in public spaces merely on the ground of disability! 

In Indian context, I can remember the famous epic of  King Prithviraj Chauhan of Rajasthan who fought a brave battle against the foreign invader Muhammad Ghori. Ghori lost the battle 16 times and was given mercy by the Chauhan. However, 17th time a traitor from Chauhan's kingdom supported Ghori's army and that resulted in defeat of Chauhan who was captured and taken to Afghanistan along with his state poet cum friend Chandbhar by Ghori.  In Ghori's court, Prithviraj and Chandbhar were brought in shackles. Prithviraj was asked to show the art of archery, wherein he could aim and shoot just by hearing the sound. It is also known as Shabdbhedi-baan. Ghori asked him to show him this art. To make game interesting for himself, he got Chauhan's eyes pierced with hot iron rods making him completely blind. We all know what happen in end. The blind Prithvi Raj Chauhan killed Ghori in his court and obviously to meet his own death. Grave of Prithvi Raj Chauhan is present till date next to Ghori's grave.

In another epic, Ramayana, the King Dashratha (father of Lord Rama) who was an expert archer in shooting at the hearing of the sound also accidently killed Shravan Kumar by his arrow taking him to be a deer which resulted in Shraap by Shravan's parents that he too would die of Putra Viyog.

This proves sufficiently that with training, it is not difficult for a completely blind person to use fire arms for one's safety. Hence, the debate is useless in light of settled law as well as the above precedence.

Here is the report covered in Disability Scoop.

People Who Are Blind Be Allowed To Carry Guns?

By SHAUN HEASLEY

September 10, 2013 

A new debate over disability rights is emerging as Iowa grants permits for people who are blind to carry guns.

Changes to state law in 2011 allowed those with visual impairments to legally carry guns in public. And officials in one Iowa county say they’ve issued permits to at least three people who are legally unable to drive because of their limited sight.

“It seems a little strange, but the way the law reads, we can’t deny them (a permit) just based on that one thing,” Sgt. Jana Abens of the Polk County sheriff’s office told the Des Moines Register.

The situation is leaving disability advocates and law enforcement officials split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.

Cedar County Sheriff Warren Wethington has a daughter who is legally blind and favors training for those with visual impairments to carry weapons, a stance shared by some advocates who say that denying guns because of a disability would be a violation of the Americans with Disabilities Act.

Other law enforcement officials in the state are skeptical, however, and even some advocates say guns may present one area where equal access is unreasonable.

“Although people who are blind can participate fully in nearly all life’s experiences, there are some things, like the operation of a weapon, that may very well be an exception,” Patrick Clancy, superintendent of the Iowa Braille and Sight Saving School, told the newspaper.

Unlike Iowa, some states do consider vision abilities in issuing gun permits. Nebraska and South Carolina require applicants to provide proof of vision, for example. Meanwhile, in Missouri and Minnesota individuals with limited vision may be indirectly disqualified because of requirements to complete a live fire test and hit a target.

Source: Disability Scoop 

HIV no ground fordiscrimination in right to work

HIV-positive driver can resume work

Pune, September 6, 2013

Amruta Byatnal

A year after a HIV-positive bus-driver was sacked by the Maharashtra State Road Transport Corporation, the Bombay High Court has given him his job back. Reacting to the verdict, 43-year-old Ramesh Bhamre (name changed) said, “I am happy that I can get my job back now. I wish others don’t have to go through the trauma that I did to get my basic rights.”

The Hindu had reported the stigma faced by the driver in June 2012. (http://bit.do/driver).

Ramesh Bhamre was sacked by the MSRTC in May 2012 on the grounds that he was “unfit to work”. Bhamre, who had been working as a driver since 1999, had told the MSRTC that owing to the treatment he was receiving, he was physically weak. He had requested “light work” rather than being asked to drive heavy vehicles. Stating that there was no legal provision for changing the job profile of HIV-positive employees, the transport authority had removed him from service. But, Bhamre decided to fight the stigma, accusing the MSRTC of discriminating against him because of he was HIV-positive.

Declaring that every citizen had the right to work and could not be discriminated against, a Bombay High Court Bench consisting of Justice Abhay Oak and Revati Mohite-Dhere stated that Bhamre should be reinstated within a week. The Bench also ruled that the State Transport Authority was liable to provide him compensation for the year he spent out of work.

As he stood in front of journalists on Thursday afternoon, Bhamre was initially at a loss for words. He discovered he was HIV-positive in 2008 and it had been, he said, one long struggle since. Dealing with the stigma had, he said, worn him out. His teenage son was forced to take up work in a factory to make ends meet, he said. “My wife and two sons struggled as I watched helplessly,” he said.

Human rights lawyer Asim Sarode, who represented Bhamre, said: “This case will act as a positive precedent for many others in the State, who face similar struggles.” Bhamre’s case was fought on the basic premise of the rights given by the Constitution, Mr. Sarode stated.

Source: The Hindu

Extend legal protetction for impairments not covered under the PwD Act 1995 - mandate of SC

Please refer to earlier post titled "SC directs the Govt. to give suitable jobs to employees with Mental Illness" dated 19 August 2012. Here is the coverage on the issue from The Hindu.

Enabling judgment from Supreme Court

The case of the 1977-batch Indian Administrative Service officer, whose compulsory retirement on grounds of  disability the Supreme Court has overturned, sets a strong precedent on the codification of protections against contingencies that arise during service. A two-judge bench upheld Anil Kumar Mahajan’s appeal against an earlier  decision that sought to curtail his tenure by five years. Interpreting the 1995 law on disabilities, the bench ruled that those who acquire an impairment while in service had to be accommodated in a position appropriate to their current condition. Where such adjustment was not available, the government was obliged to retain them in a supernumerary status, pending the identification of one, until the age of superannuation. The message emanating from the judgment is unambiguous, even if only a fraction of the disabled, estimated at nearly 10 per cent of India’s population, is in formal employment. It is relevant no less to the large numbers rendered severely impaired for life on account of the notoriously high rates of road accidents, not to mention industrial mishaps. The verdict also drives home the necessity, both within the administration and beyond, to recognize disability as a dimension of social diversity. To the extent that this is a relatively new reality, reflected in the workplace and several walks of life, public and private institutions would have to become responsive. It is hard to conceive of a more effective advocacy on disability than policies of accommodation that can potentially counter prevailing prejudice and stereotypes.

As regards recruitment under the Union Public Service Commission, a number of persons with different disabilities have begun to join the ranks in recent times. In fact, the question of identification of suitable placements across different services has come into the spotlight, illustrating the need to fashion a comprehensive approach on the absorption of new appointees. The landmark verdict, if anything, underscores yet again the urgent need for Parliament to enact fresh legislation in this area. This is imperative following India’s ratification, way back in 2007, of the United Nations Convention on the Rights of Persons with Disabilities. It is the way forward on extending legal protection for categories of impairments that are not covered under the current law and give fresh impetus to realise the goals of inclusive education. The newly constituted department of disability affairs in the Ministry of Social Justice and Empowerment should strive towards bringing the law-making process to fruition at the earliest. For, every single day lost to procedural delays affects the life prospects of millions.

Source: The Hindu

Madras HC seeks report on prisoners with mental disabilities

High Court seeks report on the conditions of mentally challenged prisoners

Express News Service - MADURAI  31st August 2013 

Admitting a public interest litigation seeking treatment for mentally affected prisoners, the Madras High Court (Madurai Bench) has sought a report from the Superintendent of Prisons in Tamil Nadu about the conditions of the convicts and trial prisoners suffering from mental disorders.

The Principal Bench comprising of Acting Chief Justice R K Agrawal and Justice N Paul Vasantha Kumar has given two weeks time to the prison authorities to submit the report.

In his petition, N Muthukumar, deputy general secretary of Tamil Puligal, said he was arrested and confined a cell in Block No 1 in the Madurai Central Prison for participating in an agitation on June 13. During his stay in the jail, he noticed that prisoners lodged in Block 2 displayed some abnormalities. On enquiring with long-time inmates, he learnt that Block 2, was dubbed as ‘Maiyam’ (Centre) where prisoners of unsound mind were lodged.

There are 22 prisoners suffering from various psychological disorders and 13 convicts, who are insane, presently in the said block. Every day, prison authorities provide tablets to these inmates but no proper mental health treatment was given citing lack of infrastructure.

Only prisoners who were in advanced stage of mental illness were referred for treatment outside. Sometimes neurologists and psychiatrists visited them in their cells.

Petitioner’s counsel Alagumani contended that the Tamil Nadu Prison Rules, the Prisoner Act 1900 and the Mental Health Act 1987 clearly spell out how such prisoners must be treated. But this was violated grossly by the Madurai Prison authorities. In other prisons too similar conditions prevailed.

Hence he prayed for proper treatment for the mentally ill inmates.

Source: Express News Service

Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

By JOHN ELIGON

Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.

Source: New York Times with the headline: Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates.

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Give mentally-disabled a suitable job: SC

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Source: Hindustan Times

Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune

High Court quashes sack order of disabled person 

Saurabh Malik

Tribune News Service

Chandigarh, August 6

In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.

Delhi HC questions MSJE why disabled can't function as surgeon

Court questions 3% reservation for differently-abled MBBS degree holders

Sunday, Jul 28, 2013, 12:59 IST | Place: Delhi | Agency: DNA

Ayesha Arvind

The Delhi High Court has questioned the 3% reservation for differently-abled persons holding MBBS degree only in non-surgical posts. While hearing a plea pertaining to such an appointment, the Court asked, "Does the Centre feel that differently-abled persons with valid MBBS degrees are unfit to perform their duties as doctors in surgical procedures?" The Court has sought a clarification from the ministry of social justice and empowerment in this regard.

A bench of Justices Pradip Nandrajog and V Kameswar Rao has also directed the chief commissioner for persons with disabilities to appear in the Court on Monday. The Court order follows a plea in which an ENT surgeon has challenged the appointment of an orthopedically-handicapped (OPH) candidate for the same post in AIIMS for which he too had applied.

The surgeon, Dilip Samal, had applied for the post of senior resident/demonstrator at AIIMS in July last year under the OBC category. He challenged the appointment of an OPH candidate after his RTI query revealed that the selected candidate had scored less than the qualifying marks in written test. Samal was later informed by the AIIMS authorities that as per procedure those who qualify under the OPH category are adjusted in the respective category, irrespective of the marks and merits in the entrance exam.

Samal then approached the Central Administrative Tribunal (CAT) for relief. In January this year, the CAT had set aside the selection of the OPH candidate Mohammad Mubashshirul Haq. It had ruled that the AIIMS had not notified any relaxed standards of suitability for the OPH candidates while inviting applications or any time thereafter. AIIMS, in turn, challenged CAT’s ruling before the High Court.

The Court took note of the fact that Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DoPT guidelines mandate that authorities first identify posts to be reserved in medical facilities for persons with disabilities and specifically earmark them.

And that these seats cannot be adjusted with vacancies under other categories.

“Two issues arise out of the plea. The first being whether it is mandatory in law to identify seats reserved for differently-abled persons in medical specialities when applicants are invited from eligible candidates. The other issue which arises is a directive issued by the ministry of social justice and empowerment, government of India, requiring reservation in the medical field only in non-surgical posts,” the Court said.

“It is the second issue which troubles us more than the first. Prima facie, we find it strange that the ministry of social justice and empowerment would be of the opinion that differently-abled persons per se would be unfit to perform duties as a doctor in a discipline which requires surgical procedures to be performed,” it said.

DNA India

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.


According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Source: US Department of Justice