A platform to share the periodic updates on developments in disability law, policy formulation and related fields across the world with special focus on India. It analysis successes and failures in the struggle of restoring disability rights through Court Intervention and general discourse on Human Rights of People with Disabilities.
Thursday, May 22, 2014
Central Administrative Tribunal directs Railways to appoint visually impaired candidates
Wednesday, May 14, 2014
Delhi HC redefines the Scope of Powers of Chief Commissioner Disabilities
- 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
Click here for the Judgement of The Chief Commissioner for Persons with Disabilities (Accessible typed PDF copy) (Scanned copy of original Order)
Tuesday, May 13, 2014
Private schools also to provide Separate Toilet & Drinking Water under the RTE Act
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:
Tuesday, April 15, 2014
Transgender is not merely a social or medical issue but a Human Rights issue - Supreme Court
Monday, April 7, 2014
Obsolete Montreal Convention prevails not Stringent European Laws on Disability Discrimination when flying international- Supreme Court
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.
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
- 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].
- 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].
- 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].
- 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
Friday, April 4, 2014
Child with special needs distinct from disadvantage group under RTE
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
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.
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.
Supreme Court to hear Curative Petition on Decriminalisation of Homosexuality
Wednesday, April 2, 2014
Overweight airhostesses to get back their jobs with backwages
Friday, March 28, 2014
Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC
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.
Thursday, March 27, 2014
Delhi HC issues notices to Civic Agencies on Barrier Free Pedestrian Infrastructure
Wednesday, March 26, 2014
Supreme Court of India | Justice Sunanda Bhandare Foundation Vs. Union of India & Anr | 26 March 2014
Court: Supreme Court of India
Bench: R.M. Lodha, Sudhansu Jyoti Mukhopadhaya, Dipak Misra
Case No. & Title : WP (Civil) No. 116 OF 1998, Justice Sunanda Bhandare Foundation Vs. U.O.I. & Anr
Date of Judgement: 26 March, 2014
Equivalent Citation : (2014) 14 SCC 383)
Author: R Lodha
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 116 OF 1998
JUSTICE SUNANDA BHANDARE FOUNDATION ....Petitioner(s)
VERSUS
WITH WRIT PETITION (CIVIL) NO. 115 OF 1998 WRIT PETITION (CIVIL) NO. 430 OF 2000 CIVIL APPEAL NO. 6442 OF 1998 CIVIL APPEAL NO. 6443 OF 1998
J U D G M E N T
R.M. LODHA, J. :
Writ Petition (Civil) No. 116 of 1998 In this Writ Petition
filed by the petitioner – a charitable trust, the prayers made are (i) for
implementation of the provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (for
short, '1995 Act'), (ii) direction for the reservation of 1% of the identified
teaching posts in the faculties and college of various Universities in terms of
Section 33 of the 1995 Act, and (iii) for declaration that denial of
appointment to the visually disabled persons in the faculties and college of
various Universities in the identified posts is violative of their fundamental
rights guaranteed under Articles 14 and 15 read with Article 41 of the
Constitution of India.
2. Initially, two respondents, namely, (one) Union of India
through its Secretary, Ministry of Welfare and (two) University Grants
Commission (U.G.C.) through its Chairperson were impleaded as party
respondents.
3. On 07.10.1998, the Court ordered impleadment of the
States and so also the Union Territories and, accordingly, respondent Nos. 3 to
34 were impleaded as party respondents.
4. On 13.09.2001, the Court directed the Chief Commissioner
for Persons with Disabilities, Ministry of Social Justice and Empowerment,
Government of India to be impleaded as party respondent and consequently it has
been impleaded as respondent No. 35.
5. Then on 18.02.2009, the Court directed Commissioners for
Persons with Disabilities of various States and Union Territories to be
impleaded as party respondents and consequently respondent Nos. 36 to 70 have
been impleaded who are Commissioners for Persons with Disabilities in different
States and Union Territories.
6. Certain interim orders have been passed by this Court from
time to time.
7. Insofar as U.G.C. (respondent No. 2) is concerned, the
Court was informed on 19.03.2002 through counter affidavit that U.G.C. has
acted in compliance of the 1995 Act. In paras 3, 6, 7 and 8 of the counter
affidavit filed on behalf of the Chief Commissioner for Persons with
Disabilities, it was stated :
"3. It is humbly submitted
that in pursuance of Section 32 of the Persons with Disabilities Act (Equal
Opportunities Protection of Rights and Full participation) Act, 1995, the
appropriate government (Government of India) has updated the list of identified
posts. This list has been issued vide Extraordinary Gazette Notification No.
178 dated 30.6.2001. In this list, the posts of University/College/School
Teacher for the blind and low-vision have been listed at Sl. No. 24-27 on page
No. 592.
6. The Chief Commissioner for Person with Disabilities has taken cognizance of the arrangements provided by the University Grants Commission for persons with disabilities by of extending 5% relaxation in cut off marks, appearing in the NET for Junior Research Fellowship and Lectureship. Thus, the arrangement extended by UGC is in consonance with the policy stand taken by Govt. of India in so far as relaxation in minimum standard is concerned. Relaxation in standards has been favoured only when the candidates belonging to reserved categories are not available on the basis of the general standard to fill all the vacancies reserved for them.
7. The relaxation extended to SC & ST candidates as per Maintenance of Standard 1998 of the Universities, provides for a 5% relaxation from 55 % to 50% in the marks obtained at Master's Degree. Since reservation for the disabled is called horizontal reservation which cuts across all vertical categories such as SC, ST, OBC & General. Therefore, all such blind/ low- vision persons who belonged to SC, ST vertical category would automatically enjoy the benefit of 5 % relaxation at the minimum qualifying marks obtained at Master's Degree level. Thus, only the blind and low vision belonging to OBC & General categories are deprived of the relaxation of 5% marks at masters' level.
8. The blind/low-vision and other visually disabled persons belonging to SC & ST category are in any case enjoying the benefit of 5% relaxation in marks obtained at the master's level for appearing in the NET examination conducted by the UGC. By extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC & ST disabled would bring parity amongst all persons with disabilities irrespective of their vertical categories."
8. Thus, insofar as U.G.C. is concerned, this Court in the
order 19.03.2002 observed that nothing survives for consideration and the
matter is disposed of as against U.G.C.
9. On 19.07.2006, the Court directed the Union of India and
the State Governments to file their responses in the form of affidavits within
a period of four weeks, failing which it was observed that the Court may be compelled
to direct personal appearance of the Chief Secretaries of the concerned States
though the Court would like to avoid in making such a direction. Some of the
States have filed their responses and some have not.
10. Be that as it may, the beneficial provisions of the 1995
Act cannot be allowed to remain only on paper for years and thereby defeating
the very purpose of such law and legislative policy. The Union, States, Union
Territories and all those upon whom obligation has been cast under the 1995 Act
have to effectively implement it. As a matter of fact, the role of the
governments in the matter such as this has to be proactive. In the matters of
providing relief to those who are differently abled, the approach and attitude
of the executive must be liberal and relief oriented and not obstructive or
lethargic. A little concern for this class who are differently abled can do
wonders in their life and help them stand on their own and not remain on mercy
of others. A welfare State, that India is, must accord its best and special
attention to a section of our society which comprises of differently abled
citizens. This is true equality and effective conferment of equal opportunity.
11. More than 18 years have passed since the 1995 Act came
to be passed and yet we are confronted with the problem of implementation of
the 1995 Act in its letter and spirit by the Union, States, Union Territories
and other establishments to which it is made applicable.
12. Ms. Sunita Sharma, learned counsel for the Union of India,
informs us that insofar as Union of India is concerned, it has implemented the
provisions of the 1995 Act and the reservation of 1% of the identified teaching
posts in the faculties and college of various Universities in terms of Section
33 of the 1995 Act has been done.
13. In our view, the 1995 Act has to be implemented in the
letter and spirit by the Central Government, State Governments and Union
Territories without any delay, if not implemented so far.
14. We, accordingly, direct the Central Government, State
Governments and Union Territories to implement the provisions of the 1995 Act
immediately and positively by the end of 2014.
15. The Secretary, Ministry of Welfare, Government of India,
the Chief Secretaries of the States, the Administrators of Union Territories,
the Chief Commissioner of the Union of India and the Commissioners of the State
Governments and Union Territories shall ensure implementation of the 1995 Act
in all respects including with regard to visually disabled persons within the above
time.
16. Writ Petition is disposed of in the above terms.
Writ Petition (Civil) No. 115 of 1998, Writ Petition (Civil)
No. 430 of 2000, Civil Appeal No. 6442 of 1998 and Civil Appeal No. 6443 of
Writ Petitions and Appeals are disposed of in terms of the judgment passed
today in Writ Petition (Civil) No. 116 of 1998.
2. No costs.
3. Interlocutory Applications for intervention and
impleadment filed in Civil Appeal No. 6442 of 1998, in view of the above, do
not survive and they stand disposed of as such.
..............................J. (R.M. LODHA)
..............................J. (SUDHANSU JYOTI MUKHOPADHAYA)
..............................J. (DIPAK MISRA)
NEW DELHI; MARCH 26, 2014