After Contempt petition, Deptt of Education, Delhi notifies nursery seats for children with disabilities

Please refer to my earlier posts titled  Disability angle in Nursery admission norms - HC issues notice to centre dated 26 Feb 2014 and Child with special needs distinct from disadvantage group under RTE dated 04 April 2014 on the subject. 

The Directorate of Education has finally notified the  high court order on the admission of disabled children into nursery. The circular directs 51 private unaided schools "to reserve at least two seats for the 'children with special needs' (CWSN) in their schools in nursery class for the academic year 2014-15".

To access the DoE Notification dated 19.5.2014, click here.  (The notification, the list of schools & the high order though is not accessible to the persons with visual impairment and is a very dim copy.... thanks to lack of sensitization in the DoE). This notification has come after the petitioner-representing a group of parents with disabled children-filed a contempt suit and over a month after the court first ordered DoE to keep seats vacant for this group on February 27.

The circular is not only for the 15 schools mentioned by the high court on May 15, but also says, "other schools as mentioned by the petitioner in the writ petition are also directed to reserve the same number of seats" for the group.

The petitioner had furnished the court a list of 44 schools that had, till the previous academic year, allocated points in the 100-points system to disabled children. On April 11, DoE ordered inspection of these schools to take stock of existing facilities and on May 7 told the court that 18 had facilities, 18 didn't, and another eight couldn't be inspected. The same day, the petitioner submitted another list of seven schools that had offered similar points in the previous session.

The court had asked DoE to direct 15 (the eight uninspected and the seven newly-submitted) schools to reserve seats for the group. On being summoned, the representatives of the 18 schools without facilities also appeared in court on May 20 and will have to return with their replies on May 28.

DoE on Tuesday listed 51 schools -with and without facilities, the eight uninspected and the seven introduced later. On May 7, the court, "considering the fact that finalization of the admission process is imminent in the view of the orders of the Supreme court," directed DoE to issue a circular "within 24 hours from today (May 7)." When DoE didn't, the petitioner filed a contempt suit. The principal secretary (education) had appeared in court on May 16. DoE, however, remains under contempt till next hearing.

Cardiologist Amita Garg, who initiated litigation in the matter, is disappointed that DoE has taken so long. "This is just the start for us," she says. "We'll have to now approach schools afresh."

When the points system was fixed for all this year, no separate category was created for the disabled candidates. Under Right to Education Act, the disabled kids, coming under the 'disadvantaged categories', are eligible to apply for the 25% free-ship quota.

However, there's just one draw per school for it and the number of EWS (economically weaker section) applications is so overwhelmingly large, the disabled group has found itself out of the race altogether.

Source: Times of India  

Central Administrative Tribunal directs Railways to appoint visually impaired candidates

Dear Colleagues,

Railways has always been very reluctant to hire persons with disabilities citing safety and security reasons though not even a single incident of safety has been attributed to disability till date.  Its actually a mindset of the Human Resource officials, inherent prejudices who attach incapacity to the disabled. 

In the instant case, nearly 10,000 visually challenged candidates had reportedly appeared in the examination in November-December 2013 after the railways advertised for 7,386 vacancies. All of them were, however, issued rejection letters by the Indian Railways before the results were announced for being “100 per cent visually challenged”.

In protest, the applicants moved  a petition in Central Administrative Tribunal (CAT), arguing that they are eligible and entitled to be considered for the posts, both on merit as well as under reservation for visually challenged persons.

The CAT in its order yesterday directed Northern Railways to publish a revised merit list and appoint the candidates, who qualified on merit as well as under the disability quota.

Arguing for the applicants, lawyer S K Rungta – himself visually challenged – said the Northern Railways’ recruitment cell must file complete results, including the results of 100 per cent visually challenged candidates, so that their merit position could be ascertained.

Rungta and lawyer Pankaj Sinha urged the court to direct the Railway Board to consider appointing the petitioners and other visually challenged candidates.

The railways responded by saying that the vacancies were for people with “low vision” and that 100 per cent visually challenged persons cannot be hired for the posts despite the fact that the posts in question are identified as suitable for completely blind by the Government of India.

The tribunal, however, directed Northern Railways and the Railway Board to publish the complete results within two months and appoint the qualified candidates.

Northern Railways spokesperson Neeraj Sharma refused to comment. “The matter is sub-judice, so we cannot comment. But the railways will take appropriate action after consulting its legal department,” he said.

Despite catena of judgments by High Courts and Supreme Court, the Railways continues to play hide and seek when it comes to the equal employment rights of the persons with disabilities. In this matter, despite CAT's direction,  I am sure, given the past experience, Railways will delay the matter by knocking the doors of Delhi High Court against the CAT Order. However, the writing is clear on the wall. The Railway officials in the Human Resource division needs serious sensitization on disability issues and also  need to put their house in order. The reporting mechanism, appraisal, posting/transfers, disability reservation & promotion processes & equalizing facilities, reasonable accommodation for the employees with disabilities is something that they desperately need to work on on an urgent basis. Hope the message goes to right people.

Related news in Indian Express today

CAT asks railways to appoint visually impaired candidates

Delhi HC redefines the Scope of Powers of Chief Commissioner Disabilities

Dear Friends,

The Delhi High Court has been increasingly relying on the Court of Chief Commissioner for Persons with Disabilities (CCPD in short) for disposal of cases / writ petitions filed on the subjects involving issues related to disability rights. The High Court has been transferring petitions and asking parties to appear before the CCPD with directions to CCPD to decide the matter within a time bound manner.

We had seen earlier that the High Court sought intervention of the court of CCPD in coming to a conclusion on a matter related to nursery admission for children with disabilities under the RTE and. 

Now the Hon'ble Court has issued the mandamus thereby forwarding the PILs filed by Score Foundation & AICB  against DSSB and, Govt. of Delhi challenging  an advertisement issued by the Delhi Subordinate Services Selection Board (DSSSB) as the said advertisement did not provide reservation for the visually impaired on two posts, which are identified for this disability category. These posts are Special Educator and TGT Computer Teacher’ stenographer & telephone operator.

While passing an important order on 8th May, 2014 in the matter, the Delhi High Court ruled that the post of Computer Teacher in schools is deemed to be identified for reservation and appointment of the visually impaired. 

The  High Court issuing the mandamus that Chief Commissioner will decide the matter and issue directions in the matter pronounced an empowering interpretation of Section 58 of the Persons With Disabilities Act. The court stated that the Chief Commissioner for Persons With Disabilities is a “Statutory body” who has the powers to “Ensure that the rights made available to persons with disabilities are given effect to. Meaning thereby, those who are subject to the provisions of the Act are to be made accountable for their acts and if it is found that an organization is not implementing the provisions of the Act the said organization being compelled to do so”.

The judgment further goes on to state “this would mean that the Chief Commissioner for Persons with Disabilities has the statutory power to ensure that such posts which are identified for reservation concerning visually differently abled persons are filled up from the said/category of persons”.

While referring the two petitions in reference for final adjudication to the Chief Commissioner for Persons with Disabilities, The High Court directed that the CCPD would dispose of the matter in three days time and his orders would be complied with by all concerned without “demur”.

This important judgment will not only ensure equitable reservation for visually impaired persons in recruitments, but also provide much needed teeth to the Chief Commissioner for Persons with Disabilities to enforce his directions. Needless to say that this judgement can be cited in various states wherever the respondents organisations challenge the power of the Court of Commissioner Disabilities.

Click here  for the Common Judgement of the Hon'ble High Court in the following two cases clubbed together     (in PDF)     (in Word File) :

• WP (C) 1675 of 2014 titled Score Foundation and Anr Versus Min. of Social Justice and Empowerment & Others
• WP (C) 2848 of 2014 titled All India Confederation of Blind Versus DSSB and Others

The Chief Commissioner for persons with disabilities subsequently heard the matter and ordered the Ministry of Social Justice to reanalyse and submit a consolidated list of identified posts for persons with disabilities and ordered DSSSB to republish posts for, and reserve one percent seats for persons with visual impairment. 

Click here for the Judgement of The Chief Commissioner for Persons with Disabilities (Accessible typed PDF copy)    (Scanned copy of original Order)

Private schools also to provide Separate Toilet & Drinking Water under the RTE Act

Dear Friends,

Though the Court has clarified that separate toilets for boys and girls  as well as drinking water provisions are a must under the RTE wherever education is being imparted - be it private schools or the government. However, it would have been better to also specify that the toilets and drinking water provisions were made accessible to children with disabilities in the schools.

The Supreme Court has ruled that all schools must have separate toilets for boys and girls, and also facilities for water for drinking and other purposes.  The court's May 9 verdict has made it clear that these were integral to Right of Children to Free and Compulsory Education (RTE) Act, 2009.

"Separate toilets for girls and boys as well as availability of water are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools," said the court.


Related News:

Toilet, water must in schools: Supreme Court

Dhananjay Mahapatra,TNN | May 11, 2014, 04.14 AM IST

NEW DELHI: The Supreme Court has ruled that separate toilets for boys and girls as well as drinking water facility were integral to right to education and ordered that all schools, including those run by minority community, must make provision for them. 

A bench of Justice Dipak Misra and Justice V Gopala Gowda said the May 6 judgment of the 5-judge constitution bench, which had exempted the minority-run schools from admitting poor and backward students under the Right to Education Act, had not diluted the mandate of the RTE Act for toilet and drinking water facilities in all schools. 

The bench said separate toilets and drinking water facilities "are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools." 

The bench was dealing with an application filed by JK Raju complaining that though the Supreme Court in 2012 had upheld the validity of RTE Act, the Andhra Pradesh government had not implemented the direction for providing toilet and drinking water facilities in the state. 

The court in 2012 judgment in Society for Unaided Private Schools of Rajasthan had said ordered the schools across the country, irrespective of whether they were government, government-aided, private or minority, to provide toilets facilities for boys and girls, drinking water, sufficient class rooms, and teaching and non-teaching staff. 

The Andhra Pradesh government through advocate K Raghava Rao informed the court that there had been some compliance of the court's judgment as well as provisions of RTE Act, but sought more time to fully implement the directions. 

The bench said: "We fail to appreciate the AP government's explanation. When the young children go to school and they do not have essential facilities, drinking water and separate toilets and the requisite teaching and non-teaching staff who impart education subject-wise, in our considered opinion that would be causing a dent in the system of imparting education." 

"Once there is an impairment of imparting education, needless to say the country would not be in a position to produce the conscientious and progressive citizens for this country," it said. 

While directing the principal secretary to AP government to file a status report on the implementation of facilities regarding separate toilets for boys and girls and drinking water, the bench asked the education secretary to remain present in the court on July 7.

Source: Times of India 

Transgender is not merely a social or medical issue but a Human Rights issue - Supreme Court

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community (TGs hereafter) undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

The issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach towards transgenders which may focus on functioning as an interaction between a person and their environment highlighting the role of society and changing the stigma attached to them. TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability. Up till recently they were subjected to cruelty, pity or charity. Fortunately, there is a paradigm shift in thinking from the aforesaid approach to a rights based approach. Though, this may be the thinking of human rights activist, the society has not kept pace with this shift. There appears to be limited public knowledge and understanding of same-sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex. As a result of this approach, such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.

The petitioners in this case titled "National Legal Services Authority versus Union of India and others … WP(C) No.400 of 2012 sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

Siding with the petitioner, the court said, "There seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

The bench clarified that the rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to life in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual.” This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.

The bench further said that by recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the TGs which legitimately belongs to them.

The court thus declared as under:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by  ijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities. 

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life. 

To access the detailed court judgement click on the link below:

Judgement dated 14 April 2014 in WP(C) No.400 of 2012 titled National Legal Services Authority versus Union of India and others … 

Related Media Coverage:

Times of India : Supreme Court recognises transgenders as "third gender"

The Guardian:   India recognises transgender people as third gender

BBC News:   India court recognises transgender people as third gender

Obsolete Montreal Convention prevails not Stringent European Laws on Disability Discrimination when flying international- Supreme Court

Dear Colleagues,

The instant judgement of the Supreme Court of England, titled Stott (Appellant) v Thomas Cook Tour Operators Ltd (Respondents) [2014] UKSC 15  stresses that even though European law can protect disability rights, where it conflicts with international convention, the international convention will prevail, not the European legislation. The case highlights the need to revisit the Montreal Convention, since this convention was drafted in an era when disability advocacy wasn't firmed in the policy framework as it exist today.  The Court though accepted that there was a breach of duty on the part of respondents, however, since the international convention did not provide for the kind of relief of damages sought on the grounds of disability discrimination, the same could not be granted.

The respondents argued that the Montreal Convention (“the Convention”), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury.

Brief of the Case:

Mr and Mrs Stott decided to take a holiday in Zante, Greece, in September 2008. Mr Stott is paralysed from the shoulders down and a permanent wheelchair user. He has double incontinence and uses a catheter. When travelling by air, he depends on his wife to manage his incontinence, help him to eat, and change his sitting position.

Mr Stott booked return flights with Thomas Cook Tour Operators Ltd (“Thomas Cook”), a tour operator and air carrier. He telephoned Thomas Cook’s helpline twice, informing them that he had paid to be seated with his wife, and was assured that this would happen. However, on arrival at check-in for the return journey, Mr and Mrs Stott were told that they would not be seated together. They protested, but were eventually told that the seat allocations could not be changed.

Mr Stott had difficulties in boarding the aircraft, and was not sufficiently assisted by Thomas Cook staff. He felt extremely embarrassed, humiliated, and angry. He was eventually helped into his seat, with his wife sitting behind him. This arrangement was problematic, since Mrs Stott could not properly assist her husband during the three hour and twenty minute flight. She had to kneel or crouch in the aisle to attend to his personal needs, obstructing the cabin crew and other passengers. The cabin crew made no attempt to ease their difficulties.

Mr Stott, assisted by the Equality and Human Rights Commission, brought a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (“the UK Regulations”), which implement EC disability rights regulations (“the EC Regulations”). The UK Regulations enable civil proceedings in UK courts for breaches of the EC Regulations, and state that compensation awarded may include sums for injury to feelings. The EC Regulations require Community air carriers (among other things) to make reasonable efforts to provide accompanying persons with a seat next to a disabled person. Mr Stott claimed that Thomas Cook had breached this duty, and sought a declaration and damages for injury to his feelings.

Thomas Cook argued that it had made reasonable efforts and that the Montreal Convention (“the Convention”), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury.

The judge at trial found that Thomas Cook had breached the UK Regulations, and made a declaration to that effect. However, he held that the Convention prevented him from making any damages award to Mr Stott. The Court of Appeal agreed. Mr Stott appealed, arguing that his claim was (i) outside the substantive scope of the Convention, since the Convention did not touch the issue of equal access to air travel which are governed by the EC Regulations and (ii) outside the temporal scope of the Convention, since Thomas Cook’s failure to make all reasonable efforts began before Mr and Mrs Stott boarded the aircraft. He relied on EU cases discussing a different EU Regulation which required compensation and assistance for The passengers in the event of cancellations and delays: the European Court had held that this Regulation was not incompatible with the Convention. The Secretary of State for Transport intervened to support Mr Stott’s claim on the second (temporal) ground.

The Judgement

The Supreme Court of England unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with a concurring judgment by Lady Hale. Mr Stott was treated in a humiliating and disgraceful manner by Thomas Cook. However, his claim falls within the substantive and temporal scope of the Convention, and as a result damages cannot be awarded for injury to feelings. Substantively, the Convention deals comprehensively with the carrier’s liability for physical incidents involving passengers between embarkation and disembarkation. The fact that Mr Stott’s claim involves an EU law right makes no difference. Temporally, Mr Stott’s claim is for damages and distress suffered in the course of embarkation and flight, and these fall squarely within the temporal scope of the Convention. It is not enough that the operative causes began prior to boarding.

Reasons for the Judgement

1. The only true question in the case is whether Mr Stott’s claim falls within the scope of the Montreal Convention. There is no dispute between Mr Stott and Thomas Cook as to the interpretation of the EC Regulations or UK Regulations, or their compatibility with the Convention. The EU cases do not assist: that other Regulation concerned general standardised measures, and the European Court had recognised that any claim for individualised damages would be subject to the Convention. The case raised no question of European law [54-59].
2. On substantive scope: the Convention was intended to deal comprehensively with the liability of the air carrier for whatever might physically happen to passengers between embarkation or disembarkation. The fact that Mr Stott’s claim relates to disability discrimination makes no difference. The underlying difficulty is that the Montreal Convention and its predecessors long predated equality laws. It is unfair that someone suffering as Mr Stott had could not obtain any compensation, but that is the plain meaning of the Convention. It would be desirable for the states parties to the Convention to consider its amendment. It is also possible that the Civil Aviation Authority could take other enforcement actions against Thomas Cook [61-64].
3. On temporal scope: the operative causes of Mr Stott’s treatment undoubtedly began at check-in, prior to embarkation. However, this is not enough. Mr Stott’s claim is for damages for the humiliation and distress that Mr Stott had suffered during the course of the flight, which fall squarely within the Convention period of exclusivity. To hold otherwise would encourage deft pleading and would circumvent the purpose of the Convention [60].
4. In her concurring judgment, Lady Hale considers it disturbing that the Convention excludes damages claims for breaches of individuals’ fundamental rights. It is particularly unsettling that this applies not only to private air carriers such as Thomas Cook, but also to state airlines. A treaty which contravened a fundamental international law norm would be void. Torture is a fundamental norm of this kind, and race discrimination might be another. There is a respectable view that Mr Stott’s treatment would, under the European Convention on Human Rights, constitute inhuman and degrading treatment (“IDT”). However, it appears that IDT has not yet become a fundamental international law norm. Since Thomas Cook is not a state air carrier, these issues do not arise in this case. At the very least, however, the grave injustice done to those in Mr Stott’s position should be addressed by the parties to the Convention [67-70].

Related Review by Ms. Catherine Leech  

Disabled persons’ rights not protected by International Law when travelling by air

A recent case in the Supreme Court has demonstrated that in some circumstances, even though European law can protect disability rights, where it conflicts with international convention, the international convention will prevail, not the European legislation.

The claimant in this case, Mr Stott, had booked with Thomas Cook to fly to Zante and had telephoned their helpline to ask and advise that he paid to sit next to his wife so that she could assist him during the flight. He was assured that they would be seated together. However, when they arrived at check-in, they were told that it would not be possible. Upon boarding the aircraft, Mr Stott's wheelchair overturned but he didn't receive appropriate assistance. He was then seated in front of his wife, which made it difficult for her to assist him. Relying on European law [Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007] Mr Stott argued that Thomas Cook were in breach of its duty in their efforts to give his wife a seat next to him. The judge accepted that they had breached their duty, but that unfortunately the regulations, which are part of European law, were incompatible with the more powerful International treaty [Montréal Convention for the Unification of Certain Rules for International Carriage by Air 1999}. Consequently, the judge was unable to make an award of damages because the Montréal Convention permits an award of damages, only in very specific and defined circumstances, which would not include this disability discrimination and hurt to his feelings.

Hearing the case, the Supreme Court concluded that the Montréal Convention was indeed the piece of law that trumped all others in respect of an event which occurred on an aircraft, between embarkation and disembarkation, in the course of aviation transport. Once the Montréal Convention is the governing law, the court in England (and Europe) cannot look beyond that to other pieces of legislation, which are not international. To provide a remedy on the basis of current law is impossible. It would need the Convention to be amended.

The Supreme Court held that the claim for damages for failing to properly provide for the needs of the disabled passenger was not envisaged by the convention, but because it occurred in the course of aviation travel, which the convention covers. The convention being intended to deal comprehensively with the liability of the air carrier for anything that physically might happen to passengers between embarkation and disembarkation, was not open to the court to find a way round the convention for this claimant. They agreed that it seemed unfair that Mr Stott or somebody like him who suffered ill-treatment of the kind, should be denied compensation and the fact that they had declared the air carrier in breach, was a small comfort. The underlying problem, however, is that the predecessor of the Montréal Convention, which was the Warsaw Convention dating back to the 1920s, long predated equality law and therefore this type of situation was never envisaged in the original drafting. The Supreme Court said that there was a good argument to say the convention should now be amended to take into account the development of equality rights, but any amendment would have to be agreed by all of the contracting parties internationally.

The Montréal Convention requires revisiting. Because of its antiquated origins, it is out of touch with modern society. Not only excluding appropriate remedies in respect of disabled passengers, even where (as in this case) the court identifies that the carrier has treated the passenger inappropriately, but it also excludes claims in respect of the sort of psychological harm, which has long been recognised medically. It provides an exclusive remedy, that in failing to address issues which are excluded from the convention, it provides no remedy at all and denies access to justice for various classes of genuine claimants to suffer a genuine wrong. It is surely time for this piece of legislation to be given a complete overhaul. The origins of the Montréal Convention are almost 100 years old. In this time, travel has expanded and increased beyond measure and society has developed an increasing sophistication with regard to psychiatric injury and human rights in general. An international convention which excludes a remedy to genuinely affected individuals, is not worth the paper it is written on. This is definitely something we should lobby politicians to revisit.

For Mr Stott, it is scant comfort for the Supreme Court and the courts lower down, to confirm that he has been inappropriately treated. The airlines will know that they are untouchable in law, however inappropriately they may treat disabled people or people with reduced mobility. One thing that is clear in other aspects of personal injury law, whether this relates to employers liability or clinical negligence, is the increase in safety for the public and an awareness, before accidents happen, as people are aware that negligent mistakes will be actioned, making processes such as risk assessments, essential. The absence of any effective sanction, which is the effect that this judgement has had where the airlines are concerned, is a disincentive for them to treat such passengers with appropriate respect and consideration. 

Read more .......Disabled persons’ rights not protected by International Law when travelling by air

Child with special needs distinct from disadvantage group under RTE

Dear Colleagues,

Please refer to my earlier blog post dated 26 Feb 2014 titled  "Disability angle in Nursery admission norms - HC issues notice to centre".

In the instant case, a parent of a child with disability challenged the inclusion of child with disability under the 25% quota of disadvantaged section which meant that there were to compete with non-disabled children from weaker sections within that 25%.  He argued that he got his ward admitted with great difficulty to a Delhi school last year. The child could not progress and was neglected on account of lack of proper attention and infrastructure.

He further submitted that the number of schools equipped with infrastructure and personnel to handle these students were very few. The nature of the guidelines is such that these children have very little chances of getting admission in these institutions.

The Division Bench of Justice S. Ravindra Bhat and Justice R.V. Easwar of Delhi High Court 

directed the Union and Delhi Governments to treat “children with special needs” (CWSN) separate from those belonging to the economically weaker sections (EWS) and the disadvantaged group for admissions in pre-primary and other classes while hearing the above public interest litigation challenging an amendment to the Right to Education Act and a paragraph of the Delhi Government guidelines for nursery admissions that clubbed these students with those belonging to economically sections and the disadvantaged group.

Allowing the plea, the Bench said: “This Court is therefore of the opinion that the petitioner’s argument is merited and has to prevail. First, the imperative of Section 26 [of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995] is that the Government has to ensure that all CWSN are given access to education till age 18.”

The Court held that the right to free, compulsory education to CWSN guaranteed by Section 26 of the PWD Act read with Section 3 (3) of the RTE Act is in no manner affected or diluted by the definition in Section 2 (d) of the RTE Act. This would mean that the State necessarily has to ensure the admission of all CWSN and can not limit them in 25% quota.

The court said that a close analysis of the provisions of the PWD  Act with respect to educational rights of CWSN reveals that the Parliament always intended that the children covered by  that enactment were entitled to free and compulsory education till they attain the age of 18 years, by virtue of Section 26. The wide nature of this right is underlined by the fact that it is not subject to a minimum or maximum quota of any kind whatsoever. Whilst the addressee of this right is the State, unlike the RTE Act, which vests rights in individuals, the content of the obligation upon the State cannot, in any way, be diluted. Any such reading would render Section 26 hollow, as mere rhetoric. This is neither the meaning that appears from the text of Section 26, which is clear and without qualification in its mandate to “ensure that every child with a disability has access to free education”, nor its context to ensure the inclusion of CWSN into society through education. In addition, Section 39 – which is located in Chapter VI – and mandates a minimum 3% quota for “persons with disabilities” in government and government-aided educational institutions cannot in any manner be read as limiting the right under Section 26. To hold that Section 39 exhausts the legal obligation under Section 26 would be to conflate two independent sections, and render the latter hollow. Such an interpretation cannot be countenanced. Rather, Section 39 is only one of the measures that contributes to the broader directive of Section 26, leaving the State to work out other mechanisms to achieve the stated and mandatory end. 

Court further clarified that Section 39, in essence, covers higher education, in respect of persons with disabilities who cannot claim right to free and compulsory education. In those institutions that cater to higher and professional education, the quota of 3% is mandated.

The court said that bracketing CWSN with other ‘disadvantaged groups’ – under the terms of the 2013 order – substantially diminishes their relative chances of admission. This relative disadvantage compared to other non-disabled persons, which is the very issue sought to be remedied, is in fact perpetuated by this classification. Thus, granting parity in respect of educational benefits in this case translates to a distinct classification.

The court highlighted that in order for the education of CWSN to be effective, rather than merely counting attendance, the infrastructure and facilities in these schools must match-up to their intake. Clearly, that is not the case, even by the figures provided by the GNCT itself. The quality of  education provided to these children comes into doubt, and absent any clear reporting mechanism, the issue is plunged into further darkness. This is keeping aside the fact that even considering the number of students enrolled (on paper), a majority are still excluded and are not enrolled even on paper.

Referring to the census 2011 figures and the number of CWSN admitted in the govt. aided or run special schools, the court said, "the magnitude of the challenge becomes clear from these figures. Not only are our public institutions unable to cater to CWSN because of lack of adequate infrastructure, but moreover, there remains incoherence in the reporting itself. Despite the clear mandate of Section 26, not only can it not be said that all CWSN have access to education, but rather, a majority of CWSN are not in school, and even this fact cannot be attributed to exact figures, given the absence of a comprehensive and accurate reporting mechanism. The entire challenge is thus relegated to the background, without any attempt to measure the statistics comprehensively, in order to pave the path forward.

The Court directed the Delhi Government to “create a list of all public and private educational institutions catering to CWSN. This list shall be created zone wise. It shall include full details as to the nature of disability the institutions are able to cater to, the facilities available, whether residential or day-boarding, and the contact details for the concerned authority in that institution in case of any clarifications”.

The Court also directed it to create a nodal agency under the authority of the Department of Education (DoE) for the processing of all applications pertaining to admission of CWSN.

“This nodal agency shall structure a single form to be utilised by parents and guardians of CWSN for admissions into public and private institutions, including all relevant details required for the purposes of admission,” the Bench said.

The court purposefully  did not dispose off the case. The case has been kept pending for Action taken report from the Delhi Govt. within four weeks. The matter will be next listed on 07th May 2014. 

For detailed judgement please click here:  Judgement dated 03 April 2014 in W.P.(C) 1225/2014 Pramod Arora versus Hon'ble Lt. Governor of Delhi & Ors.

Related news coverage in media: 

Times of India -  Ensure all kids with special needs admitted to schools: HC

IANS  |  New Delhi  April 3, 2014 Last Updated at 23:06 IST

The Delhi High Court Thursday directed the city government to ensure that all children with special needs in the capital are admitted to schools equipped with infrastructure and personnel to handle them.

A division bench of Justice S. Ravindra Bhat and Justice R.V. Easwar said the authorities have overlooked the needs of such children, and directed the creation of a nodal agency to take care of the modalities for selecting schools equipped to handle disabilities - whether blindness, speech impairment, autism etc - as per the child's special requirement.

The current nursery admission guidelines, including the neighbourhood criteria and the point-based admission system, will not be considered while admitting children with special needs, the court said.

The court said the Lt. Governor's admission guidelines was illegal to the extent that it clubbed children with special needs with those from economically weaker sections (EWS)and other disadvantaged groups.

The court was hearing a plea which challenged the guidelines issued Dec 18, 2013 whereby disabled children were clubbed with EWS children in a common 25 percent quota for admission in nursery classes.

Earlier, up to three percent seats for children with special needs were reserved.

Supreme Court to hear Curative Petition on Decriminalisation of Homosexuality

Dear Colleagues,

Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual acts.

The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

The Supreme Court on 03rd April 14,  agreed to consider the plea for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalizing homosexuality. 

A bench headed by Chief Justice P Sathasivam, before whom the matter was mentioned by senior lawyers appearing for different parties, said that it will go through the documents and consider their plea. 

Curative petition is the last judicial resort available for redressal of grievances in court and it is normally considered by judges in-chamber without granting opportunity to parties to argue the case. 

The petitioners, including NGO Naz Foundation which has been spearheading the legal battle on behalf of Lesbian, Gay, Bisexual, and Transgender (LGBT) community, contended that there was an error in the judgment delivered on December 11 last year as it was based on old law. 

Senior Advocate Ashok Desai said that the judgment in the instant case was reserved on March 27, 2012 but the verdict was delivered after around 21 months by the SC and during this period lots of changes took place including amendment in laws which were not considered by the bench which delivered the judgment.  Senior advocates like Harish Salve, Mukul Rohatgi, Anand Grover and other lawyers supported Ashok Desai and pleaded for an open court hearing.   They submitted that the case should have been heard by the Constitution bench instead of two-judge bench which heard and delivered the verdict on the controversial issue. 

The apex court had earlier dismissed a batch of review petitions filed by the Centre and gay rights activists including noted filmmaker Shyam Benegal against its December 2013 verdict declaring gay sex an offence punishable upto life imprisonment. 

Related News in Times of India -  Gay sex: SC agrees to consider curative petition in open court

Overweight airhostesses to get back their jobs with backwages

Is fat fit? In certain circumstances, yes, the Delhi high court has said. The court said that the question, is not raised in the sense of physical well being. Accumulated medical wisdom would have us believe that weight brings with it several health related problems; such as, hyper tension, cardio vascular disease, etcetera. What has to be thus, kept in mind is that, the question posed is, contextual and not generic.

Writing a common judgement for three cases one each by Sangita Garg, Punita Bakshi & Sona Chawla against the NACIL (National Aviation Company of India Ltd.), Justice Rajiv Shakdher, in this important ruling  directed Indian Airlines (now NACIL) to reinstate three air hostesses who had been dismissed for gaining weight with full backwages and consequential benefits.

To access the common judgement click here:  Sangeeta Garg Versus Indian Airlines WP(C) 30/ 2010 

Justice Shakdher further observed while ruling in favour of the three women, " It is quite clear that Indian Airlines Ltd has not applied its mind to germane factors before taking a decision to terminate the petitioners' services. The reasons given had no link with the conclusion reached which was to dispense with the services of the petitioners," Justice Shakdher observed while ruling in favour of the three women.

HC directed IA to take back in service the women with full back wages and all consequential benefits, rejecting the argument of the airlines that contract for appointment itself made it clear that excess weight will lead to dismissal.

The women who had joined IA as air-hostesses, were till their termination from service, deployed as ground staff. The airline dismissed them on the ground they failed to maintain weight within the prescribed limits.

On their part, the women didn't seek redeployment as cabin crew but continuance of their present job as ground staff. They argued they were removed summarily without being given a chance to answer the allegations. They further pointed out that facts and circumstances in each of the three cases were different which is why they gained weight. For example one of the petitioners had a medical condition while another was being put to extreme stress by her estranged husband and in-laws.

Defending its decision IA maintained even if the women were medically fit, to continue with their services it could be terminated under the terms of the contract upon their failure to maintain weight as per prescribed limits. It added that indulgence over several years was granted to the women despite which, they were unable to bring their weight within the prescribed limit, leading to their dismissal. IA further argued that it is in travel industry where pleasing appearance, manners and physical fitness was required of members of both sexes. But HC was not convinced, holding in essence that termination from service for employees who were not in active flight duties was too severe an act.

Related Story in Times of India : Air Hostesses sacked for weitht to get back jobs 

Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC

A Division bench of Delhi High Court presided by Justice S. Ravindra Bhat and Justice R.V. Easwar observed that arbitrary denial of 3% reservation for persons with disabilities in terms of The Persons with Disabilities Act 1995,  would amount to discrimination.

Writing judgement in this case titled Nishant S. Diwan Versus High Court of Delhi, W.P.(C) 983/2014 on 25th March 2014, the bench observed that the Disabilities Act made it mandatory for all government organisations to reserve at least 3 per cent vacancies for the disabled and that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment process for the Delhi Higher Judicial Services was “arbitrary and discriminatory”.

The bench also struck down the argument that a five-judge committee on 09.03.2007, made no recommendation in respect of DHJS while making recommendation about the DJS (comprising of civil judges and magistrates only) saying that the Committee had considered the proposal in the background of whether to provide for reservations in DJS and there was no explicit reference to DHJS.

Click here to access the Supreme Court Judgement in Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

The court has also directed the establishment to carry out a review of the remaining number of vacancies in the DHJS that can be “appropriately earmarked for those with disabilities according to the total number of sanctioned posts”, following which it could recruit the appropriate number of persons in the next round of recruitment.

The court has directed the administration to carry out a “special recruitment procedure” for only the earmarked vacancies falling to the share of those entitled to be considered under the 3 per cent quota under the Disabilities Act, within a year of the date of declaration of results in the current recruitment process.

DHJS refers to appellate courts, which exercise appellate authority over the lowest level of judiciary. Direct recruitment to DHJS is done through an examination held by the High Court Establishment (HCE).

The HCE had issued an advertisement for recruitment to 14 posts in December last year, setting aside four seats for SC/ST candidates and 10 for general category. The examination for these seats is scheduled to be held on April 6.

The order was given on a plea filed by an advocate who is a person with locomotor disability, who had alleged that non-inclusion of disability quota in the DHJS recruitment was “contrary to the express provisions of the Disabilities Act”.

Advocate Nishant S Diwan, who has been practicing as an advocate since 1998, had also argued that the HCE was “under a duty to set-apart appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS”.

The HCE had taken the decision that the disability quota would not apply to the DHJS recruitments and would only apply to the magistrates and civil Judges, since the notification issued by the Ministry of Social Justice and Empowerment had mentioned only “magistrates of the subordinate judiciary”. The HCE had also taken the plea that since the examination was scheduled for April 6, imposition of any quota at this late stage would “upset the entire timeline and delay the recruitment process”.

The court held that “there can be no difference for reservation under the Disabilities Act” between the DJS and the DHJS since the DHJS officers perform duties and functions similar to those in DJS.

The court directed the administration to set aside one of the 14 posts for persons eligible under the disability quota, but has directed that the seat should be kept vacant and should be clubbed with the next round of recruitment.

Since as per the Supreme Court judgement in UOI Versus National Federation of Blind, it is clarified that the section 33 is independent of Section 32 for making reservation, the Hon'ble Court should have also passed directions to calculate the backlog of the total vacancies since 01 Jan 1996 and not reserving one seat in the present recruitment process.

Also the list of identified posts makes a mention that posts with different nomenclature but with similar functions out to be reserved. Also since posts of DHJS are also promotional posts for the lower judiciary, these can not remain beyond the purview of reservation  in both direct recruitment as well as promotional reservation envisaged by the judgement of the Hon'ble Supreme Court ibid.

Download the Judgements:

• W.P.(C) 983/2014 Nishant S. Diwan Versus High Court of Delhi pronounced by Delhi High Court on 25 March 2014.
• Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.